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American  Constitutions 


American   Constitutions 


THE  RELATIONS  OF  THE  THREE    DEPARTMENTS 

AS  ADJUSTED   P,Y  A  CENTURY 


READ  BEFORE  THE  CHIT-CHAT  CLUB  OF  SAN   FRANCISCO 


liV 

HORACE  DAVIS 


SAN   l-'kAXC'ISCO 
18S4 


r>  -, 


^  AMERICAN   CONSTITUTIONS. 

^  — ■ — 

o  I. 

All   the   nations   sharing  our   form  of  civilization 
make  a  three-fold  division  of  the  functions  of  gov- 
ernment into  legislative,  executive  and  judicial  de- 
partments.    On  the  proper  separation  and  independ- 
ence of  these  departments  rest  in  great  measure  the 
liberties  of  the  people.     The  union  of  all  these  de- 
partments under  one  authority  constitutes  a  despot- 
^  ism  ;  while  in  different  and  independent  hands  they 
02  form   checks   upon   each   other   against    usurpation. 
>r  To  adjust  carefully  the  balance  of  these  powers,  to 
2  define  their  fields  of  action,  to  bestow  on  each  inde- 
— '  pendence  and  a  power  of  self-defence,  is  the  supreme 
<  effort  of  modern  o-overnmental  science.     Our  fathers 
2  inherited  from  Great  Britain  the  idea  of  this  three- 
fold  division   of   government,  and   introduced  it,  al- 
though imperfectly,  in  their  early  constitutions. 

My  object  in  this  paper  is  to  present  a  brief 
historic  sketch  of  the  change  in  the  relations  of 
these  departments,  which  has  been  silently  going 
on  in  the  United  States  for  the  past  century.  In 
the  State  Governments,  the  numerous  alti.-rations 
in  their  constitutions  since  1790  have  steadil)- en- 
larged  the   powers   of    the  Executive,  and  cramped 

302049 


4  AMERICAN  CONSTITUTIONS. 

and  limited  the  functions  of  the  Legislatures.  But, 
on  the  other  hand,  in  the  Federal  Government,  with- 
out constitutional  amendments  in  this  particular, 
Con4ress,  with  the  natural  aggressiveness  of  popular 
bodies,  has  encroached  somewhat  upon  the  field  of 
Executive  power;  while  everywhere,  in  both  Na- 
tional and  State  Governments,  the  Judiciary  has 
o-ained  vastly  in  power  and  importance.  And  now 
let  us  trace  these  changes,  beginning  with  the  State 
Constitutions. 

There  have  been  substantially  three  distinct  strata 
of  g-overnment  in  the  thirteen  old  colonies,  each 
stratum  quite  marked  in  its  character,  though  hav- 
ini^  many  things  in  common  with  the  others — first; 
the  colonial  governments ;  second,  the  revolutionary 
constitutions  adopted  during  the  War  of  Indepen- 
dence; third,  the  modern  forms  of  government. 
During  the  first  period,  "  the  good  old  colony  times 
when  we  all  lived  under  the  King,"  nearly  all  the 
colonies  were  ruled  by  Royal  Governors,  represent- 
ing in  miniature  the  dignity  and  power  of  his  British 
Majesty.  The  Governor  appointed  all  the  officers, 
including  the  Judiciary;  he  had  command  of  the  land 
and  naval  forces,  and  possessed  an  unqualified  veto 
on  all  legislation.  The  exceptions  to  this  type  will  be 
noted  hereafter.  In  the  second  period,  the  people, 
stung  by  the  exactions  of  an  irresponsible  executive, 
nervous  with  fear  of  one-man  rule,  rushed  to  the 
other  extreme,  and  resolved  to  place  all  real  power 
in  the  hands  of  the  Legislature,  springing  directly 
from  the  people.  The  balance  was  again  disturbed, 
the  pendulum  swung  clear  to  the  other  end  of  the 


AMERICAN  CONSTITUTIONS.  $ 

arc.  The  power  of  the  Legislature  in  ni;iii\-  States 
was  ahiiost  as  absokite  as  that  of  the  British  Parha 
ment,  without  its  conservative  elements.  Wise  men 
trembled  for  the  permanence  of  the  i^overnment,  and 
Madison  and  Jefferson  have  left  us  the  record  of 
their  fears  IJut  the  calm  judgment  of  the  people 
prevailed  over  their  alarms.  Slowly  they  rebuilt 
their  hasty  work,  re-adjusting  and  poising  the  great 
structure.  This  has  been  the  work  of  the  thin  I 
period,  to  balance  the  powers  of  the  government;  to 
limit  and  define  the  functions  of  the  three  great  de- 
partments, and  establish  their  independence  within 
proper  boundaries,  so  that  I  believe  our  State  Con- 
stitutions are  to-day  as  a  whole  the  most  perfect 
frame-work  of  government  for  men  living  in  a  De- 
mocracy, that  htmian  skill  has  ever  devised.  Return- 
ing to  the  first  period,  a  brief  notice  is  demanded  ol 

The  Colonial  Governments. 

In  the  first  volume  of  Story's  Commentaries  on  the 
Constitution  can  be  found  a  sketch  of  them  ;  Ban- 
croft's United  States  gives  fuller  details.  Story 
divides  them  into  three  classes. 

1st.      Charter  Governments,  including   Massachu 
setts,  Rhode  Island  and  Connecticut. 

2d.  Proprietary  Governments,  to  which  belong; 
Pennyslvania,  Delaware  and  Maryland. 

3d.  Provincial  Governments,  comprising  tlu-  re- 
maining seven  colonies. 

Each  colony  had  a  Legislature  c^lected  b\'  llu- 
people;  suffrage  being    usually  limited   to   ihe   h'ee- 


6  AMERICAN  CONSTITUTIONS. 

holders.      Pennsylvania   and    Georgia   had    only   a 
single    legislative    body,   but  the   remaining  eleven 
colonies  had  each  a  higher  branch,  usually  called  the 
Council,  which  was  appointed  by  the  Governor,  ex- 
cept in  Massachusetts,  Rhode  Island  and  Connecticut, 
where  it  was  chosen,  directly  or  indirectly,  by  the 
people.     The  Governor  was  appointed  by  the  Crown 
or  the   Proprietaries,  except   in   Rhode    Island    and 
Connecticut.     These  two  colonies  enjoyed  the  excep- 
tional  privilege   of  choosing   their   own   Executive. 
Thus  the  Governors  in  eleven  colonies  were  inde- 
pendent of  the  people,  while  their  powers  were  very 
extensive.     They  were  commanders-in-chief  of  the 
armed  forces  by  land  and  by  sea;  they  appointed  all 
officers  military  and  civil,  including  judges;  they  ap- 
pointed the  Council  and  could  suspend  it;   they  could 
assemble  or  dissolve  the  Legislature ;  they  had  an 
unqualified  veto  on  all  laws,  except  in  Pennsylvania; 
and  they  all  had  the  power  of  pardoning  offences. 
Besides  these  broad  restrictions  on  popular  govern- 
ment, the  Crown  claimed  the  right  to  veto  all  laws 
and  to  entertain  appeals  from  the  Courts  of  last  resort 
in  the  colonies.      In   Rhode  Island  and  Connecticut, 
however,  under  their  peculiarly  liberal   institutions, 
the  Legislatures  appointed  all  officers,  civil  and  mili- 
tary, and  the  Governors  possessed   no  veto  power; 
while  in  these  two  colonies  and   Maryland,  the  laws 
need  not  be  approved  by  the  Crown. 

Such  were  the  general  outlines  of  the  Colonial  Gov- 
ernments, at  the  outbreak  of  the  War  of  the  Revo- 
lution. Although  the  Crown  claimed  great  power, 
the  laws  were  administered  in  a  manner  so  liberal 


AMERICAN  CONSTITUTIONS.  7 

and  humane  that  the  people  were  contented,  and 
there  was,  on  the  whole,  but  little  complaint,  till  the 
effort  made  by  the  British  Parliament,  under  Georore 
the  Third,  to  tax  the  colonies.  Then  came  the  out 
break  of  the  storm  of  rebellion,  and  the  union  uf  the 
colonies  in  a  Continental  Congress.  I  need  noi  follow 
the  political  history  of  the  period  farther  than  as  it 
bears  directl\-  upon  my  subject.  The  CouL^^ress  in 
the  fall  of  1775  advised  the  colonics  of  New  Hamp- 
shire, South  Carolina  and  Virginia  to  form  L^overn- 
ments  adapted  to  the  necessities  of  the  times,  and 
on  the  10th  of  Ma\-,  1776,  by  motion  of  John  Adams, 
adopted  a  resolution  that  "Each  one  of  the  United 
Colonies,  where  no  government  sufficient  to  the  exi- 
gencies of  their  affairs  had  as  yet  been  established, 
should  adopt  such  government,  as  would,  in  the 
opinion  of  the  representatives  of  the  people,  best 
conduce  to  the  happiness  and  safety  of  their  con- 
stituents and  of  America." 

In  accordance  with  the  spirit  of  these  resolutions, 
all  the  colonies  placed  their  governments  on  a  new 
basis.  Rhode  Island  simply  declared  her  independ- 
ence, and  continued  under  the  forms  of  her  Charter 
Government  till  1842.  Connecticut  adopted  a  brief 
bill  of  rights,  and  continued  the  old  form  of  govern 
ment  till  18 18.  The  other  eleven  colonies,  in  the 
course  of  a  very  few  years,  adopted  new  constitutions. 
Some  formed  provisional  instruments,  whicli  were 
soon  replaced  by  more  permanent  ones ;  others  re- 
jected the  work  of  their  first  conventions;  but  by 
1784  the  entire  eleven  had  f(jrmuhited  liicir  ideas  of 
republican  institutions,  and  adoptetl  them  as  tin-  basis 
of  government. 


Q  AMERICAN   CONSTITUTIONS. 

To  these  instruments  I  would  call  special  atten- 
tion. Crude,  ill-di^^ested  and  ill-balanced  as  they 
seem  to  the  historical  student  of  to-day,  they  are,  so 
far  as  I  know,  the  first  successful  efforts  to  form 
republican  governments  upon  written  constitutions. 
The  conception  of  an  instrument  creating  the  gov- 
ernment, and  yet  restraining  it,  giving  it  life  and 
power,  and  yet  limiting  and  balancing  those  powers, 
an  instrument  which  even  the  people  cannot  over- 
ride, except  by  prescribed  forms,  this  conception  was 
first  made  a  practical  success  in  America  and  in  these 
constitutions.  The  British  Constitution  is  an  un- 
written code  of  political  customs  sanctioned  by  time 
and  protected  only  by  the  conservatism  of  a  priv- 
ileged class,  and  the  loyalty  of  the  people.  "  Par- 
liament," says  Cooley, ''  exercises  sovereign  authority, 
and  may  even  change  the  constitution  at  any  time — 
but  in  America  the  will  of  the  people,  as  declared  in 
the  constitution,  is  the  final  law  which  governs  the 
legislative  body  equally  with  the  private  citizen."  I 
have  said  these  early  constitutions  are  marked  by 
an  undue  preponderance  of  the  Legislature,  entirely 
unsettling  the  balance  of  the  government.  As  show- 
ing how  different  were  the  estimates  then  held  of  the 
functions  of  political  machinery  from  the  notions  of 
modern  times,  I  may  add,  that  while  the  simplest 
constitutional  amendment  must  to-day  be  submitted 
to  direct  popular  vote  for  ratification,  most  of  those 
early  instruments  were  both  framed  and  adopted  by 
the  Legislatures,  and  where  they  were  framed  by 
special  conventions,  they  were,  with  one  or  two 
exceptions,  adopted  finaWy  by  the  same  conventions, 


AMERICAN  CONSTITUTIONS.  9 

and   it  was   not   held    necessary  to  submit   ilu-ni   to 
popular  vote. 

The  same  confusion  prevailed  regardinL;-  the  Con- 
federation of  the  States  which  was  formed  about 
this  same  time.  That  government, — if  such  it  could 
be  called, — consisting  as  it  did  of  a  Congress  solely, 
havine  neither  executive  nor  iudiciarx', — was  never 
submitted  to  the  people  of  all  the  States,  but  was 
ratified  in  many  of  them  by  the  Legislatures  alone, 
a  fact  commented  on  by  Madison  in  the  Fedei-alist, 
No.  43,  in  these  words:  "A  compact  between  inde- 
pendent sovereigns,  founded  on  acts  of  legislative 
authority,  can  pretend  to  no  higher  validity  than  a 
league  or  treaty  between  the  parties;" — and  Edmund 
Randolph,  in  his  opening  speech  before  the  Consti- 
tutional Convention  at  Philadelphia,  in  1  ']Z'].^  said 
very  truly :  "  The  Confederation  was  made  in  the 
infancy  of  the  science  of  constitutions." 


lO  AMERICAN  CONSTITUTIONS. 


II. 

Constitutions  of  the  Revolutionary  Period. 

A  brief  summary  of  those  provisions  relating  to 
my  subject  may  be  found  in  Bancroft's  United  States, 
Vol.  IX,  Ch.  1 5, and  in  \\\^  Federalist.^  No.  46;  the  full 
text  may  be  found  in  the  two  volumes  entitled  ''  Char- 
ters and  Constitutions,"  published  by  the  United 
States  Government  in  1879.  No  words  of  mine  can 
give  their  spirit  so  well  as  the  pointed  language  of 
Madison  in  the  Convention  of  1787.  He  said  "  Ex- 
perience proves  a  tendency  in  our  governments  to 
throw  all  power  into  the  Legislative  vortex.  The 
Executives  of  the  States  are  little  more  than  ci 
phers;  the  Legislatures  are  omnipotent.  If  no 
effectual  check  be  devised  on  the  encroachments  of 
the  latter,  a  revolution  will  be  inevitable."  He 
mieht  have  derived  some  consolation  from  the  fact 
that  the  States  which  had  enjoyed  the  most  liberty 
as  colonies  preserved  a  somewhat  juster  balance  of 
powers  in  their  constitutions,  while  the  latest-framed 
instruments  showed  a  positive  improvement  on  those 
of  earlier  date,  as  if  a  healthier  sentiment  had  already 
begun  to  prevail.  But  let  us  examine  the  documents 
themselves. 

First  notice  the  restrictions  of  the  power  of  the 
Executive  and  his  dependence  on  the  Legislature.  In 
nine  out  of  thirteen  States,  the  Governor  was  chosen 


AMERICAN  COySTITUTIONS.  I  1 

by  the  Legislature.  Only  in  the  four  New  England 
States  was  he  elected  by  the  people  ;  and  his  term 
was  the  shortest  possible,  being  in  ten  States  only 
one  year  and  nowhere  over  three  years.  To  provide 
still  furdier  ao^ainst  the  desig-ns  of  a  cunning-  Execu- 
tive,  the  six  Southern  States  restricted  carefully  his 
re-election,  providing  that  he  might  hold  ofhce  not 
more  than  two  or  three  consecutive  years,  when  he 
should  be  ineligible  for  three  or  four  years.  To  con- 
trol his  action  even  more,  there  was  an  Executive  or 
Privy  Council  in  every  colony,  whose  advice  and  con- 
sent were  required  to  all  important  acts.  This  coun- 
cil was  usually  appointed  by  the  Legislature,  and 
sometimes  required  to  be  from  its  own  members. 

In  eleven  States,  the  Governor  had  no  veto  what- 
ever on  legislation;  in  Massachusetts  he  had  the 
usual  qualified  veto;  in  New  York  he,  together  with 
the  Supreme  Court,  formed  a  Council  of  Revision, 
which  wielded  a  veto  power.  In  the  matter  of  par- 
doning offenses,  in  five  States  the  Governor  had  the 
pardoning  power  unrestricted ;  in  four  States  he  could 
only  exercise  it  with  the  consent  of  the  Council  or 
Legislature ;  in  Georgia  the  power  belonged  to  the 
Legislature  alone.  The  appointing  power  is  one  of 
the  chief  prerogatives  of  the  Executive.  In  not  one 
of  the  States  did  the  Executive  wield  such  a  power 
singly.  In  Georgia  all  officers  were  elected  by  the 
people.  In  three  States  they  were  chosen  entirely 
by  the  Legislature;  in  four  States  mainly  by  the 
Legislature;  in  souk-  by  the;  G(weriior  and  Council; 
in  New  York  by  the  LegislaLiin:  through  an  Aj) 
pointing  Committee. 


12  AMERICAN  CONSTITUTIONS. 

"  The  Legislature,"  says  Bancroft,  "  was  the  centre 
of  the  system.  The  Governor  had  no  power  to  dis- 
solve it,  or  either  branch.  In  most  of  the  States  all 
important  civil  and  military  officers  were  elected  by 
the  Legislature.  The  scanty  power  intrusted  to  the 
Governor,  wherever  his  power  was  more  than  a 
shadow,  was  still  further  restrained  by  an  Executive 
Council.  Where  the  Governor  had  the  nomination 
of  officers,  they  could  be  commissioned  only  by  con- 
sent of  the  Council."  He  might  have  added,  that 
the  Governor  himself  was  generally  elected  by  the 
Legislature ;  that  in  many  States  the  Legislature 
could  remove  any  officer;  that  in  some  States  these 
bodies  held  or  shared  the  pardoning  power;  and, 
most  singular  of  all,  in  five  States  they  exercised  ex- 
tensive judicial  powers,  generally  sitting  as  a  Court 
of  last  resort. 

Warnings  of  the  Revolutionary  Statesmen. 

And  yet  the  statesmen  of  that  day  had  a  full  un- 
derstanding of  these  defects.  Listen  to  Madison,  in 
the  Fede7'alist :  "The  accumulation  of  all  powers — 
Legislative,  Executive  and  Judiciary — -in  the  same 
hands,  whether  of  one,  a  few,  or  many,  and  whether 
hereditary,  self-appointed  or  elective,  may  justly  be 
pronounced  the  very  definition  of  tyranny."  After 
comparing  at  length  the  provisions  of  these  State 
Constitutions,  he  says  :  "  They  carry  strong  marks 
of  the  haste  and  still  stronger  of  the  inexperience 
under  which  they  were  framed,  and  in  some  instances 
the   fundamental   principle    under  consideration   has 


AMERICAN  CONSTITUTIONS.  1} 

been  violated  by  too  great  a  mixture  or  even  an 
actual  consolidation  of  the  different  powers."  *  * 
:■:  *  a  -phe  Legislative  Department  is  everywiiere 
extending  the  sphere  of  its  activity,  and  drawing 
all  power  into  its  impetuous  vortex."  ''"  '^•'-  * 
''  The  founders  of  our  Republics  seem  never  to  have 
recollected  the  danger  from  Legislative  usurpations, 
which,  by  assembling  all  power  in  the  same  hands, 
must  lead  to  the  same  tyranny  as  is  threatened  by 
Executive  usurpations."  *  *  *  And  he 
quotes  from  Jefferson's  notes  on  Virginia  the  follow- 
ing passage  relative  to  the  same  defects  in  the  Vir- 
ginia Constitution  :  "  All  the  powers  of  govern-  , 
ment — Legislative,  Executive  and  Judiciary — result 
to  the  same  Legislative  body.  The  concentrating 
these  in  the  same  hands  is  precisely  the  definition  of 
despotic  government.  It  will  be  no  alleviation  that 
these  powers  will  be  exercised  by  a  plurality  of 
hands,  and  not  by  a  single  one.  *  ""•'  *  An 
elective  despotism  was  not  the  government  we 
fought  for,  but  one  which  should  not  only  be  founded 
on  free  principles,  but  in  which  the  powers  of  the 
government  should  be  so  divided  and  balanced 
among  several  bodies  of  magistracy  as  that  no  one 
could  transcend  their  legal  limits  without  being  ef- 
fectually checked  and  restrained  by  the  others." 

I  cannot  better  close  this  part  of  my  subject  than 
by  quoting  the  incisive  words  of  Bancroft,  speaking 
of  the  spirit  which  permeated  the  Articles  of  Confed- 
eration, formed  at  this  very  period.  "  The  Conled- 
eracy  was  formed  under  the  inlluence  of  political 
ideas   which    had   been   developed    by   a   contest  of 


14  AMERICAN  CONSTITUTIONS. 

centuries  for  individual  and  local  liberties  against  an 
irresponsible  central  authority.  Now  that  power 
passed  to  the  people,  new  institutions  were  required, 
strono- enough  to  protect  the  State,  while  they  should 
leave  untouched  the  liberties  of  the  individual.  But 
America,  misled  by  what  belonged  to  the  past,  took 
for  her  organizing  principle  the  principle  of  resist- 
ance to  power,  which  in  all  the  thirteen  colonies  had 
been  hardened  into  stubbornness  by  a  succession  of 
common  jealousies  and  struggles."  Of  all  these 
instruments,  the  Massachusetts  Constitution  of  1780 
was  by  far  the  best,  maintaining  the  most  just 
balance  of  power  between  its  departments ;  and 
this  alone  survives,  though  it  has  been  materially 
amended.  The  Federal  Constitution,  fortunately, 
was  not  shaped  till  1787,  when  the  evils  of  these 
one-sided  governments  had  become  evident,  and 
therefore  it  received  more  harmonious  proportions. 

In  105  years,  from  1776  to  1880,  inclusive,  just 
105  constitutions,  counting  in  the  Articles  of  Con- 
federation and  the  Federal  Constitution,  had  been 
adopted  by  the  people  of  these  United  States,  an 
average  of  one  each  year.  Of  these,  45  belong  to  the 
eleven  States  in  Rebellion,  and  this  excessive  propor- 
tion is  partly  due  to  their  unsettled  condition  at  the 
close  of  the  civil  war.  Throwing  out  these  States,  the 
average  age  of  the  defunct  instruments  was  about  27 
years.  There  are,  however,  eight  States  which  have 
each  lived  over  half  a  century  under  one  constitution ; 
five  New  England  States  under  their  present  forms, 
Massachusetts  102  years,  New  Hampshire  90,  Ver- 
mont  89,    Connecticut   64,  and    Maine   62 ;    Rhode 


AMERICAX   CONSTITUTIONS.  1  S 

Island  from  the  issuing  of  her  charter  to  1842,  New 
Jersey  1776  to  1844,  and  Kentucky  1799  to  1850. 
In  the  above  figures  I  have  taken  no  account  of  con- 
stitutions formulated  by  conventions  and  rejected  by 
the  people,  nor  of  the  innumerable  amendments,  some 
very  important,  which  have  been  adopted  or  rejected. 

Massachusetts  bears  off  the  palm  for  conserva- 
tism, living  102  years  under  one  instrument;  Kansas 
for  the  most  frequent  changes,  having  four  constitu- 
tions in  five  years,  from  1855  to  1859  ;  some  of  which, 
however,  must  be  credited  to  border  wars  and  squat- 
ter sovereignty.  Eight  States  are  living  under  their 
original  constitutions.  I  give  them  in  order  of  age : 
Massachusetts  1780,  Maine  1820,  Rhode  Island 
1842,  Wisconsin  1848,  Oregon  1857,  Minnesota 
1857,  Nevada  1864,  and  Colorado  1876.  Four 
States  have  each  had  five  successive  constitutions: 
Georgia,  South  Carolina,  Texas  and  Viro^inla.  Lou- 
isiana  takes  the  prize  for  number,  having  adopted 
her  sixth  constitution  in  1879.  These  figures  do 
not  include  any  changes  that  may  have  taken  place 
during  the  rebellion,  under  the  Confederacy,  from 
1861  to  1865. 

Under  the  early  revolutionary  constitutions,  the 
Legislature  soon  began  to  invade  tlie  other  powers 
of  the  government.  Madison  saitl  in  i  787  :  "  Tlu- 
tendency  of  republican  governments  is  lo  aggrandize 
the  Legislature  at  the  expense  of  the  other  depart- 
ments." The  nearer  the  people,  the  greater  the 
audacity  of  aggression.  This  tendency  was  noticed 
very  early ;  its  progress  is  marktnl  in  the  hcdcralist. 
No.   47.  as   it   manife.sted   itself  in    New   York   and 


I  6  AMERICAN  CONSTITUTIONS. 

Pennsylvania.  Soon  a  desire  for  its  correction  began 
to  be  seen  ;  first  conspicuously  in  the  New  York 
Constitution  of  1846.  This  modern  spirit  shows 
itself  by  separating  the  functions  of  the  three  depart- 
ments and  making  each  independent,  so  far  as  it  can 
be  done;  it  is  distinguished  everywhere  by  a  restric- 
tion of  the  Legislature,  an  increase  of  Executive 
power  and  by  independence  of  both  Governor  and 
Judges.  I  cannot  consider  each  of  these  instru- 
ments in  detail,  but  will  only  point  out  their  general 
features ;  and  I  should  add  that  this  review  includes 
the  Louisiana  Constitution  of  1868,  but  not  that  of 
1879,  of  which  I  had  no  details. 


AMERICAN  CONSTITUTIONS.  IJ 


III. 

Modern  State  Constitutions. 

To-day  the  (jov^ernor  is  everywhere  chosen  I))'  the 
people  directl)',  instead  of  through  the  Legislature  ; 
his  term  has  generally  been  much  lengthened,  the 
old  term  of  one  year  being  retained  only  in  four 
New  England  States,  while  in  fifteen  States  it  has 
been  lengthened  to  two  years,  in  two  States  to  three 
years,  and  in  seventeen  States,  including  nearly  all 
the  latest  constitutions,  to  four  years.  i\t  the  same 
time,  the  old  restrictions  on  con.secutive  terms  and 
re-election  have  been  generally  abrogated,  being  re- 
tained in  only  eight  States  to-day.  The  veto  power 
has  been  restored,  and  at  present  in  thirty-four  States 
the  Governor  has  the  usual  qualified  veto  on  legisla- 
tion. In  eight  of  these,  however,  the  veto  may  be 
overruled'  by  a  bare  majority  of  each  house  in  the 
Legislature.  Four  States — Delaware,  North  Caro- 
lina, Ohio  and  Rhode  Island — have  absolutely  no 
veto.  As  the  Legislature  is  apt  to  crowd  much  busi- 
ness into  the  last  days  of  its  .sessions,  twenty-one 
States,  to  prevent  crude  and  hasty  legislation,  allow 
the  Governor  some  time  after  the  adjournment  to 
consider  whether  he  will  sign  or  veto  a  bill,  and  four- 
teen States  permit  him  to  veto  individual  items  in 
an  appropriation  bill  ;  of  tliis  I  will  speak  prcsciuly 
more  at  length.       The    Privy  Council  has  be(Mi  abol 


15  AMERICAN  CONSTITUTIONS. 

ished  in  all  but  five  States, and  in  these  it  is  no  longer 
chosen  by  the  Legislature,  but  by  the  people,  and  its 
control  over  the  Governor  is  much  curtailed. 

The  appointing  of  officers  has  been  generally 
taken  from  the  Legislature.  Most  of  the  officers 
arc  chosen  by  the  people  ;  where  this  is  not  the  case, 
they  are  usually  appointed  by  the  Governor  and 
confirmed  by  the  Council  or  the  upper  house  of  the 
Legislature.  The  pardoning  power  is  now  every- 
where vested  in  the  Governor,  or  the  Governor  act- 
mcr  with  the  advice  of  either  the  Council  or  the 
Courts — except  in  Connecticut,  where  the  Legisla- 
ture retains  the  power.  In  most  of  the  States  the 
Legislature  is  forbidden  to  increase  or  decrease  the 
salary  of  the  Governor  during  the  period  for  which 
he  was  elected.  Such  are  the  leading  points  in 
which  the  power  and  independence  of  the  Executive 
Department  has  been  restored.  The  Judiciary  has 
also  been  placed  upon  a  new  footing.  The  Legisla- 
tures have  been  stripped  of  their  judicial  functions, 
except  in  cases  of  impeachment,  and  the  Judges,  in- 
stead of  being  elected  by  the  Legislatures,  are  now, 
with  the  exception  of  four  States,  chosen  by  the  peo- 
ple, or  appointed  by  the  Governor  and  confirmed  by 
the  Council  or  Senate.  The  relations  of  the  Judi- 
ciary to  the  other  great  departments  of  government 
will  be  more  fully  treated  hereafter. 

Limitations  upon  Legislation. 

Not  satisfied   with    this  transfer  of  powers  to  the 
other  branches  of  the  government,  a  general  desire 


AMERICAN  CONSTITUTIONS.  19 

has  grown  up  to  curtail  legislation,  and  a  new  system 
of  checks  upon  law-making  has  been  devised,  giving 
rise  to  such  provisions  as  the  following:  Biennial 
sessions  of  the  Legislatures  have  been  substituted 
for  annual  meetings  in  twenty-hve  constiuitions, 
includinof  all  the  later  ones.  The  lencrth  of  the  ses- 
sions  has  been  shortened  in  half  of  the  States,  by 
limiting  the  pay  of  the  members  to  a  specified 
period,  running  in  different  States  from  40  to  90 
days,  and  experience  shows  that  their  zeal  to  serve 
the  country  as  legislators  dies  out  with  their  pay. 
Special  legislation  is  forbidden  by  stri;igent  pro- 
visions in  many  States.  In  special  sessions,  the 
Legislatures  of  many  States  are  forbidden  to  con- 
sider subjects  not  mentioned  in  the  call  for  the 
session. 

To  prevent  hasty  legislation,  some  States  forbid 
the  introduction  of  any  new  bill  (unless,  perhaps, 
by  a  two-thirds  vote  of  each  house)  after  a  certain 
period  has  elapsed  from  the  beginning  of  the  session, 
which  period  ranges  in  different  places  from  25  to 
60  days.  In  other  cases,  new  bills  cannot  be  in- 
troduced within  a  certain  number  of  days  of  the 
period  set  for  the  adjournment.  Some  constitu- 
tions provide  that  all  bills  and  amendments  must 
be  primed  or  published  before  they  can  be  consid- 
ered by  either  house.  All  bills  must  be  read  three 
times  in  each  house,  usually  on  diffcn-eiit  da)'s.  In 
nineteen  States,  no  bill  can  be  passed  without  a 
majority  of  the  members  elected  to  each  house,  and 
the  yeas  and  nays  must  be  recorded  on  tlir  lin.d 
passage  of   every    bill.      Tweniy-three    Stales    pro- 


20  AMERICAN  CONSTITUTIONS. 

vide  that  no  Act  shall  be  revised  or  amended  by 
mere  reference  to  its  title,  but  the  Act  revised  or 
section  amended  shall  be  set  forth  and  published  at  full 
length.  And,  as  already  stated,  where  the  Governor 
holds  the  veto  power,  he  may  usually  have  a  certain 
number  of  days  to  consider  the  bill  even  if  the  Legis- 
lature should  adjourn  in  the  meantime. 

Perhaps  the  most  fruitful  source  of  vicious  legisla- 
tion  is   found    in   "  log-rolling," — that  is,  combining 
two  or  more  subjects  in   one   bill, — or  in    '-riders" 
upon  appropriation  bills, — that   is,   in  grafting   gen- 
eral or  special  legislation  upon  some  bill  containing 
the  general    appropriations   for  the   support  of  the 
government, — or    in    combining    appropriations    for 
special  purposes  with  the  general  appropriations. — 
or  in  hurrying  through  some  vicious  measure  under 
a  specious  or  false  title.     All  these,  except  the  last, 
are   direct    assaults    upon   the   independence  of  the 
Executive,    compelling    him    to  give   his   assent   to 
objectionable  measures,  or  in  vetoing  them  to  veto 
measures    of    public    necessity.       The    question    of 
"  riders  "  upon  appropriation  bills  will  be  more  fully 
considered  in  connection  with  the   Federal   Govern- 
ment.    To  prevent  these  evils  has  been  the  object 
of  many  constitutional  provisions,  and  the  practice 
has  been  broken  up  in  most  of  the  States  by  clauses 
providing  that  no  bill  shall  contain  more  than  one 
subject,  which  shall  be  clearly  expressed  in  the  title, 
or  forbidding  the  insertion  of  private  appropriations 
in  the  general  appropriation  bills  ;   while  in  fourteen 
States,  as  already  remarked,  the  Governor  has  power 
to  veto  any  single  item  in  an  appropriation  bill. 


AMERICAN  CONSTITUTIOXS.  21 

Besides  all  the  checks  on  unwholesome  leg^isla- 
tion  which  I  have  mentioned,  there  are  man)-  others 
much  in  vogue  with  modern  constitution-makers, 
such  as  the  following:  It  is  quite  customary  to  for- 
bid the  incurring  of  any  indebtedness  by  the  State; 
to  forbid  any  loan  of  its  credit ;  to  forbid  any  increase 
or  diminution  of  the  pay  of  members  of  the  Legis- 
lature during  their  term  of  office  (the  same  provision 
is  common  regarding  other  officers  of  the  State) ; 
no  money  shall  be  drawn  from  the  treasury  except 
by  appropriation  bills  ;  legislators  shall  not  be  ap- 
pointed to  any  office  created  by  them  ;  the  order  of 
the  payment  of  the  appropriations  is  often  pre- 
scribed ;  no  continuing  appropriation  shall  be 
made  for  over  two  years;  no  extra  compensation 
shall  be  allowed  to  officers  during  their  term  of 
office  ;  no  term  of  office  of  any  individual  shall  be 
extended  ;  no  legislator  shall  be  interested  in  any 
contract  with  the  State ;  no  person  holding  any 
lucrative  office  under  the  State  or  United  States 
shall  sit  in  the  Legislature  ;  no  bill  shall  be  amended 
so  as  to  cliange  its  purpose;  no  money  shall  be  given 
from  the  State  Treasury  to  any  institution  of  a 
sectarian  character;  no  special  privileges  shall  be 
granted  to  any  corporation;  and  lastly,  the  Judges  of 
the  Supreme  Court  are  sometimes  associated  with 
the  upper  house  in  the  trial  of  impeachments.  All 
these  provisions,  and  other  similar  ones  much  in  use, 
are  checks  upon  the  power  of  the  Legislature,  and 
would  have  been  thought  strange  and  unnatural 
restrictions  a  hundred  )'ears  ago.  Indexed,  this 
desire  to  control  and  limit  the  government  is  shown 


2  2  AMERICAN   CONSTITUTIONS. 

throiiohoLit  the  general  character  of  these  new  con- 
stitutions. It  extends  in  some  respects,  though  in  a 
hmited  degree,  to  the  powers  of  the  Executive  and 
Judiciary,  and  it  forms  a  striking  contrast  to  the 
generous  confidence  which  the  people  placed  in  their 
officers  a  century  ago,  and  the  liberal  powers 
entrusted  to  them.  The  early  instruments  were 
usually  very  short,  being  often  simply  a  bill  of  rights, 
followed  by  a  mere  skeleton  of  the  government. 
Those  of  to-day  are  lengthy  documents,  full  of 
detail,  frequently  more  like  a  code  of  laws  than  a 
fundamental  instrument.  The  officers  of  the  State 
are  limited  and  cramped  in  their  action  in  every 
direction.  Two  of  the  most  remarkable  fur  their 
length  are  the  constitutions  adopted  b)'  Maryland  in 
1867,  and  by  California  in  1879. 

The  Southern  Confederacy. 

The  Constitution  framed  by  the  Southern  Con- 
federacy in  1 86 1,  gives  a  curious  confirmation  of 
the  change  in  the  ideas  of  our  people  regarding  the 
relations  of  the  Executive  and  Legislative  branches  of 
government.  It  follows  very  closely  the  Constitu- 
tion of  the  United  States,  but  with  the  following 
differences,  among  others:  The  heads  of  the  depart- 
ments have  seats  on  the  floor  of  each  House  of 
Congress.  The  President  may  veto  items  in  an 
appropriation  bill.  Congress  shall  appropriate  no 
money,  except  by  a  two-thirds  vote  of  both  houses, 
taken  by  yeas  and  nays,  unless  the  appropriation  is 
asked   for  by  the  head  of  some  department  of  the 


AMERICAN  CONSTITUTIONS.  23 

government,  or  is  to  pay  its  own  expenses  or  some 
judicial  award  against  the  government.  No  bill  shall 
comprise  more  than  one  subject,  and  that  shall  be 
fully  expressed  in  its  title.  The  term  of  office  of  the 
Executive  shall  be  six  years,  and  he  shall  not  be 
re-eligible.  The  heads  of  departments  may  be  re- 
moved by  the  President;  other  officers  removable 
only  for  good  cause,  to  be  expressed  in  a  report  to 
Congress. 

Thus  we  see  that  in  the  State  Constitutions  there 
has  been  a  steady  drift  of  popular  opinion  towards 
limiting  the  powers  of  the  Legislature,  and,  as  a  rule, 
towards  increasing  those  of  the  Executive.  This 
has  arisen  partly  from  the  need  of  a  better  balance 
between  the  departments,  and  partly  from  a  wish  to 
check  crude  and  unwholesome  legislation.  It  is 
observable,  that  on  the  whole  this  drift  is  strongest 
in  the  newer  communities,  while  the  older  States, 
especially  those  whose  people  are  better  educated, 
and  where  a  more  active  public  spirit  prevails,  have 
made  fewer  changes. 


24  AMERICAN   CONSTITUTIONS. 


IV. 

The  Federal  Government. 

Without  further  discussing  the  State  Governments 
let  us  pass  at  once  to  the  Federal  Constitution. 
Nothing  can  be  more  instructive  than  to  pause  a 
moment  at  the  threshold  and  trace  some  of  the  hesi- 
tating steps  by  which  the  fathers  reached  this  admir- 
able form  of  government,  and  in  the  beginning  let 
me  acknowledge  my  debt  to  Bancroft's  History  of 
the  Constitution,  which  has  been  my  sure  guide. 
The  Confederation,  that  "  rope  of  sand,"  was  rapid- 
ly crumbling  away.  It  was  at  best  a  Congress  only, 
without  Executive  or  Judiciary,  hardly  more  than  a 
league  of  independent  States  against  Great  Britain. 
Its  feeble  vitality  ended  when  the  pressure  of  war 
was  removed.  The  memory  of  the  galling  exactions 
of  King  and  Parliament  had  made  the  States  afraid 
to  trust  even  the  servants  of  their  own  choosing,  and 
the  impotent  Congress  became  the  laughing  stock  of 
the  nations  of  Europe.  "  America,"  in  the  words  of 
her  great  historian,  "  carried  with  her  in  her  progress 
the  urn  which  held  the  ashes  of  the  dead  past,  but 
she  had  also  hope  and  creative  power." 

The  wise  men  of  the  day  met  at  Philadelphia  in 
1787,  to  devise  a  plan  for  a  more  stable  government. 
We  can  consider  only  those  features  of  the  conven- 
tion which   related  to  the  balance  of  powers   within 


AMERICAN  CONSTITUTIONS.  25 

the  proposed  government.  The  question  met  them 
on  the  threshold,  how  should  the  Executive  be 
chosen  and  of  how  many  should  it  consist  ?  Vir- 
ginia proposed  that  it  should  be  chosen  by  Congress, 
leaving  the  number  undetermined.  New  Jersey  pre- 
ferred a  plural  Executive,  to.be  chosen  and  remov- 
able by  Congress.  Williamson  of  North  Carolina 
proposed  a  triple  Executive,  to  be  chosen  from  the 
Northern,  Middle  and  Southern  States.  Hamilton 
wanted  a  single  President,  chosen  by  electors,  to 
hold  during  good  behavior  ;  others  preferred  a  direct 
choice  by  the  people.  At  last,  after  weary  discus- 
sions, the  convention  voted — seven  States  to  three — 
that  the  Executive  power  should  be  in  one  man,  and 
afterwards  determined  that  he  should  be  chosen  by 
Congress.  A  little  later  they  reconsidered  the  mode 
of  election,  and  declared  in  favor  of  an  electoral  sys- 
tem something  like  the  present  one ;  then  they 
placed  the  choice  again  in  the  hands  of  Congress,  and 
at  last  they  settled  down  as  a  finality  upon  the  pres- 
ent system.  See  how  narrowly  we  escaped  having 
the  President  chosen  by  Congress,  and  yet  Madison 
said  in  the  convention  it  was  so  essential  to  keep  the 
three  departments  independent  of  each  other,  he 
thought  "a  tenure  of  good  behavior  for  the  Execu- 
tive a  less  evil  than  its  dependence  on  the  National 
Legislature  for  re-election,"  and  others  spoke  in  the 
same  vein, 

A  strong  effort  was  made  to  engraft  a  Privy  Coun- 
cil, to  be  chosen  by  Congress,  on  the  Constitution, 
which  should  share  to  some  extent  the  duties  and 
responsibilities  of  the  ICxe-cutive,   esix'ciall)    relating 


26  AMERTCAN  CONSTITUTIONS. 

to  the  confirmation  of  appointments  and  ratification 
of  treaties.  This  effort  to  Hmit  the  power  of  the 
President  failed  to  pass  the  convention,  and  its  failure 
compelled  the  substitution  of  the  Senate  in  the  per- 
formance of  some  of  its  functions;  thus  at  the  last 
moment  the  convention  invested  the  Senate  with  the 
power  to  confirm  appointments  and  ratify  treaties 
made  by  the  Executive.  "Wilson  of  Pennsylvania 
was  most  apprehensive  that  the  Legislature,  by  swal- 
lowing up  all  the  other  powers,  would  lead  to  a  disso- 
lution of  the  government;  no  adequate  self-defensive 
power  having  been  granted  either  to  the  Executive 
or  Judicial  departments."  He  foreshadowed  the 
power  of  the  Senate  in  these  prophetic  words:  "  The 
President  will  not  be  the  man  of  the  people,  but 
the  minion  of  the  Senate.  He  cannot  even  appoint 
a  tide-waiter  without  it."  Wilson's  fear  was  well 
founded,  so  far  as  the  appointments  were  concerned ; 
but  it  certainly  would  not  have  been  prudent  to  leave 
this  tremendous  power  uncontrolled  in  the  hands  of 
one  man. 

The  OprosiTiON  to  a  Strong  Judiciary. 

This  sketch  of  the  sentiments  of  the  convention 
regarding  the  relative  powers  to  be  entrusted  to  the 
various  departments  would  not  be  complete  without 
a  brief  notice  of  their  action  concerning  the  Judiciary. 
A  strong  opposition  was  manifested  to  entrusting 
the  Federal  Judiciary  with  those  ample  powers  neces- 
sary for  a  stable  government.  It  came  from  two 
sources.     The  Confederation  had  had  no  Judiciary; 


AMERICAN   CONSTITUTIONS.  2/ 

and  the  friends  of  the  State  governments  were  very 
unwilling  to  give  the  Federal  Courts  power  to  declare 
a  State  statute  in  conflict  with  the  Federal  Constitu- 
tion; while  the  advocates  of  legislative  power  main- 
tained that  it  was  dangerous  to  allow  the  Judges  to 
over-ride  a  statute  enacted  by  Congress.  It  was  said 
by  Mercer,  of  Maryland:  "I  disapprove  the  doctrine 
that  the  Judges,  as  expositors  of  the  Constitution, 
have  authority  to  declare  a  law  void.  Laws  ought  to 
be  well  and  cautiously  made,  and  then  be  uncontroll- 
able." This  would  have  been  virtually  giving  Con- 
gress the  sovereign  control  possessed  by  the  English 
Parliament,  and  illustrates  well  how  little  some  of 
these  men  yet  understood  the  full  meaning  of  the  new 
American  doctrine  of  an  instrument  controlling  and 
limiting  the  very  government  established  under  it. 
Fortunately  there  were  wiser  men,  who  thought  with 
Hamilton:  "The  Courts  of  Justice  should  be  the 
bulwarks  of  a  limited  constitution  against  legislative 
encroachments."  The  good  sense  of  the  Convention 
brushed  aside  these  jealousies  and  gave  the  Judiciary 
the  ample  powers  it  now  possesses.  Of  the  growth 
of  these  powers  by  judicial  construction  I  will  speak 
presently.  Another  influence,  supported  by  such 
men  as  Madison,  Wilson  and  Morris,  would  have 
combined  the  Judges  of  the  Supreme  Court  with  the 
President  in  the  exercise  of  the  veto  power,  aftc;r  the 
model  of  the  Council  of  Revision  in  New  York,  un- 
mindful of  the  danger  of  mingling  the  powers  of  the 
different  departments.  This,  too,  was  haj)pily  over- 
ruled in  the  convention. 


2  8  AMERICAN  CONSTITUTIONS. 

I  have  sketched  these  discussions  in  the  conven- 
tion to  show  the  difficulties  that  surrounded  the 
framers  of  the  Constitution,  even  on  points  that  seem 
to  us  perfecdy  clear.  But  the  wisdom  drawn  from 
ten  years'  experience  with  the  Revolutionary  State 
Constitutions  and  the  Confederation,  shed  a  flood  of 
light  on  their  work.  The  structure  they  raised,  that 
model  of  balanced  powers,  has  outlived  a  century  of 
political  convulsions,  and  yet  stands  alone  in  its  just 
proportions  and  harmonious  outline.  "As  the  Brit- 
ish Constitution,"  said  Gladstone,  "is  the  most  sub- 
tile organism  which  has  proceeded  from  progressive 
history,  so  the  American  Constitution  is  the  most 
wonderful  work  ever  struck  off  at  a  given  time  by 
the  brain  and  purpose  of  man."  Be  it  remembered, 
to  the  honor  of  the  Southern  States,  that  they  were 
in  a  majority  throughout  the  entire  convention. 

Balance   of    Powers    in    Federal    Government. 

Notice  the  care  with  which  the  powers  of  the  dif- 
ferent branches  are  balanced  and  guarded  in  this 
wonderful  instrument.  First,  the  power  of  Congress 
is  limited,  by  its  division  into  two  houses.  Of  this 
division  Judge  Story  says:  "It  is  of  vital  importance 
to  interpose  some  check  against  the  undue  exercise 
of  the  legislative  power  which  in  every  government 
is  the  predominating  and  almost  irresistible  power. 
*  ^  *  A  second  branch  of  the  Legislative  Assem- 
bly doubles  the  security  to  the  people  by  requiring 
the  concurrence  of  two  distinct  bodies  in  schemes  of 
usurpation   and   perfidy."     This  principle   is  carried 


.1  ME  RICA  N  CO  ysTl  TUT  I ONS.  2  9 

into  the  impeachment  of  the  Executive;  after  the 
model  of  the  British  ParHament,  he  must  be  im- 
peached by  the  lower,  but  tried  by  the  upper  house. 
Improper  legislation  on  the  part  of  Congress  can  be 
checked  by  the  veto  of  the  Executive,  but  this  again 
can  be  overruled  by  two-thirds  of  each  house;  of 
which  Judge  Story  remarks:  "There  is  a  natural 
tendency  in  the  Legislative  Department  to  intrude 
upon  the  rights  and  absorb  the  powers  of  the  other 
departments  of  government.  A  mere  parchment 
delineation  of  the  boundaries  of  each  is  wholly  insuf- 
ficient for  the  protection  of  the  weaker  branch,  as  the 
Executive  unquestionably  is,  and  hence  there  arises 
a  constitutional  necessity  of  arming  it  with  i)owers 
for  its  own  defense.  If  the  Executive  did  not 
possess  this  qualified  negative  he  would  be  gradually 
stripped  of  all  his  authority,  and  become  what  it  is 
well  known  the  Governors  of  some  States  are,  a  mere 
pageant  and  shadow  of  magistracy." 

Another  provision  to  secure  the  independence  of 
the  Executive  is  that  forbidding  an  increase  or  dim- 
inution of  the  President's  salary  during  the  term  for 
which  he  is  elected;  while  the  Judges  of  the  Su- 
preme Court  are  protected  by  a  similar  provision  for- 
bidding the  diminution  of  their  salaries.  In  case  ot 
removal,  death,  resignation  or  inability  of  the  Presi- 
dent, a  Vice  President  chosen  by  the  people  assunu-s 
the  Executive  power,  and  not  until  a  similar  disaster 
befalls  the  Vice  President  has  Congress  any  power 
to  designate  a  successor.  No  Senator  or  Represen- 
tative shall  be  appointed  a  Presidential  Elector.  No 
person  holding  any  office   under   ih(-    l'niti;d    Stales 


30  AMERICAN  CONSTITUTIONS. 

shall  be  a  member  of  either  house  during  his  con- 
tinuance in  office.  Under  this  clause  no  member  of 
either  house  can  be  a  Cabinet  officer  while  holding 
his  seat  in  Congress.  On  the  other  hand  the  rights 
of  Congress  are  as  carefully  guarded  from  invasion 
by  the  Executive.  The  control  of  the  public  purse 
is  confided  exclusively  to  them.  "No  money  shall 
be  drawn  from  the  Treasury  but  in  consequence 
of  appropriations  made  by  law.' 

The  President  has  no  power  to  dissolve  or  ad- 
journ Congress,  except  in  case  of  disagreement  be- 
tween the  two  Houses.  Under  the  Colonial  Gov- 
ernments it  had  been  held  a  great  grievance,  so  great 
as  to  be  mentioned  in  the  Declaration  of  Independ- 
ence, that  the  King  had  repeatedly  dissolved  the 
Colonial  Legislatures  and  refused  to  re-assemble 
them,  thus  depriving  the  people  of  representation. 
The  Constitution  provides  that  "the  Congress  shall 
assemble  at  least  once  every  year,  and  such  meeting 
shall  be  on  the  first  Monday  in  December,  unless 
they  shall  by  law  appoint  a  different  day."  The 
value  to  Congress  of  this  independence  was  shown 
during  Johnson's  administration,  when  Congress,  be- 
ing at  war  with  the  President,  remained  continu- 
ously in  session  for  two  years,  with  occasional  re- 
cesses of  one  to  four  months.  The  appointing  of 
all  leading  officers  is  vested  in  the  President  with 
the  consent  of  the  Senate.  The  appointment  of  in- 
ferior officers  may  by  law  be  vested  in  the  President, 
the  Courts  of  Law,  or  the  Heads  of  the  Depart- 
ments.     The  confirmation  of  the  leading  officers   by 


AMERICAN   CONSTITUTIONS.  3  I 

the  Senate  is  the  only  power  Congress  has  over  ap- 
pointments. 

Such  great  care  was  taken  to  separate  the  func- 
tions of  the  President  and  Congress.  But  though 
the  Executive  was  intrenched  behind  much  stronger 
powers  than  those  granted  by  the  early  State  Con- 
stitutions, it  has  been  unable  to  prevent  some  en- 
croachments by  the  Legislature  upon  its  functions. 
In  the  above  enumeration  I  have  not  mentioned  the 
awkward  provision  for  the  election  of  a  President  by 
the  House  voting  by  States,  where  no  candidate  has 
a  majority  of  the  Electors,  because  it  only  provides 
for  a  rare  emergency,  and  is  not  likely  to  exercise 
any  permanent  influence  on  the  relations  of  the  two 
departments  ;  moreover  the  House  can  only  choose 
from  the  five  highest  candidates  already  voted  for  by 
the  Electors.  The  authority  assumed  of  late  years 
by  Congress  to  canvass  the  Electoral  vote  is  a  far 
more  dangerous  power. 

Encroachments  of  Congress. 

Smythe,  in  his  Lectures  on  Modern  History,  writ- 
ten in  1811,  from  an  PLnglish  standpoint,  says:  "It 
there  results  to  America  a  grand  calamity  and  f  liliire 
of  the  whole,  it  can  only  accrue  from  the  friends  ol 
liberty  not  venturing  to  render  the  Executive  power 
sufficiently  effective — the  common  mistake  of  all 
popular  governments."  Wherever  the  limits  ot  ihc 
President's  power  and  that  of  Congress  overlappetl 
one  another,  Congress  has  usually  tried  to  occui)y 
the    debateable   ground.       I    shall    notice   but    three 


32  AMERICAN   CONSTITUTIONS. 

points  of  conflict;  first,  the  treaty-making  power; 
second,  coercive  legislation,  or,  to  use  the  ordinary 
term,  "political  riders"  on  appropriation  bills,  and 
third,  the  power  of  appointing  and  removing  officers. 
The  treaty-making  power  is  vested  by  the  Consti- 
tution in  the  President  and  the  Senate,  in  these 
terms,  "He  [the  President]  shall  have  power,  by 
and  with  the  advice  and  consent  of  the  Senate,  to 
make  treaties,  provided  two-thirds  of  the  Senators 
present  concur."  In  the  face  of  this  provision.  Con- 
gress has  assumed  the  power  by  the  form  of  an  ordi- 
nary statute  to  abrogate  treaties,  as  was  done  in  i  798, 
when  our  treaty  relations  with  France  were  termi- 
nated by  statute,  and  to  abrogate  portions  of  treaties 
so  far  as  they  relate  to  internal  domestic  matters. 
This  action  was  sustained  by  Judge  Curtis,  in  Tay- 
lor  V.  Morton,  2  Curtis,  454,  which  established  this 
point,  that  an  Act  of  Congress  may  supersede  a 
prior  treaty,  so  far  as  it  is  a  municipal  law,  provided 
the  subject  matter  is  within  the  legislative  power  of 
Congress.  This  position  has  been  repeatedly  sus- 
tained by  the  Courts.  But  further,  the  House  of 
Representatives  claims  the  right  to  pass  upon  all 
treaties  affecting  the  revenue,  by  virtue  of  that  clause 
in  the  Constitution  giving  the  House  the  right  to 
originate  all  bills  for  raising  revenue.  In  acknowl- 
edgement of  this  claim  the  terms  of  the  Hawaiian 
Reciprocity  Treaty  provided  that  it  should  not  go 
into  effect  until  the  passage  of  an  Act  by  Congress 
to  carry  it  into  effect.  The  Act  was  passed  and 
approved  August  15th.  1S76,  and  the  convention 
proclaimed  September  9th. 


american  constitutions.  33 

Political  Riders. 

The  expedient  of  "tacking,"  as  it  is  called  in 
England — that  is,  of  legislating  on  appropriation 
bills — first  appeared  in  the  American  Congress  about 
1846.  Nine  years  later,  in  1855,  it  was  first  tried 
as  a  means  of  compelling  legislation.  There  was  a 
difference  between  the  Senate  and  the  House  on  the 
tariff  question;  the  House  put  a  tariff  clause  on  the 
Civil  and  Diplomatic  Appropriation  bill.  The  Senate 
promptly  protested  against  it  as  improper  legislation 
and  rejected  it,  in  which  the  House  concurred,  and 
the  bill  was  passed  without  the  rider.  In  1856 
a  similar  attempt  was  made,  and  met  the  same 
fate.  So  far,  it  will  be  observed,  the  "political  rider" 
only  appeared  as  a  weapon  in  a  contest  between  the 
two  Houses  of  Congress.  From  1865  to  1869  took 
place  the  great  struggle  between  Congress  and  Pres- 
ident Johnson.  During  this,  in  1867,  the  famous 
bill,  virtually  depriving  the  President  of  the  command 
of  the  army,  and  placing  its  management  in  the  hands 
of  General  Grant,  was  passed  as  a  rider  upon  the 
Army  Appropriation  bill.  Johnson  protested,  but 
signed  the  bill ;  a  veto  would  have  b(;en  useless,  as 
his  opponents  had  over  two-thirds  of  both  Houses, 
and  would  have  passed  the  bill  over  his  veto.  P'rom 
this  time  forward  the  practice  of  legislating  on  appro- 
priation bills  became  more  and  more  comniou.  mainly 
as  a  matter  of  convenience.  The  number  of  bills  intro- 
duced into  Congress  is  so  large,  sometimes  reaching 
8000  or  10,000,  that  it  is  almost  impossible  to  obtain 
a  hearing  for   any    measure.       lUil    llie   approprialioii 


34  AMERICAN  CONSTITUTIONS. 

bills  7?ms^  be  passed,  and  it  has  become  very  common 
to  place  on  them  provisions  enacting  necessary  laws 
which  otherwise  could  not  be  reached  on  the  calendar. 
Judge  Reagan,  of  Texas,  said  in  the  House  of  Rep- 
resentatives, that  between  1862  and  1875,  387  meas- 
ures of  general  legislation  had  been  passed  as  pro- 
visos upon  appropriation  bills.  Ten  years  ago  the 
practice  had  become  so  objectionable  that  General 
Grant,  in  his  Message,  December  i,  1873,  advised  an 
amendment  of  the  Constitution  which  would  prevent 
it,  and  this  recommendation  was  recently  renewed 
by  President  Arthur,  in  his  Message  of  December 
5,  1882.  The  House  of  Representatives  also  recog- 
nized the  faulty  nature  of  the  practice,  and  amended 
its  Rules  so  as  to  forbid  legislation  on  appropriation 
bills,  except  when  it  is  germane  to  the  subject  of  the 
bill  and  in  the  interest  of  economy. 

President  Hayes  and  Congress. 

The  practice  continued,  however,  in  a  modified 
form,  and  when  in  the  46th  Congress  the  dominant 
party  in  both  houses  wanted  to  compel  the  assent  of 
President  Hayes  to  certain  political  legislation,  they 
had  recourse  to  this  expedient,  and  tacked  the  obnox- 
ious measures  upon  the  bills  appropriating  money  for 
the  support  of  the  army  and  for  the  payment  of 
United  States  Marshals.  A  struggle  ensued  be- 
tween the  two  parties  in  Congress  lasting  three 
months,  which  will  be  famous  in  history  as  defining 
one  of  the  great  landmarks  of  the  government.  The 
bills  at  last  passed  both  Houses  with  the  riders,  and 


AMERICAN  CONSTITUTIONS.  35 

were  v^etoed  by  President  Hayes.  After  seven  suc- 
cessive vetoes,  five  of  which  were  upon  appropria- 
tion bills  with  riders  attached,  and  two  upon  the 
riders  detached  from  the  appropriations,  the  two 
Houses  gave  up  the  struggle  and  passed  the  bills 
without  the  riders. 

The  veto  message  of  April  30,  1879,  on  the  Army 
Bill,  discusses  the  question  at  length.  I  quote  a  few 
passages  from  it:  "The  practice  of  tacking  to  appro- 
priation bills  measures  not  pertinent  to  such  bills, 
did  not  prevail  until  more  than  forty  years  after  the 
adoption  of  the  Constitution.  It  has  become  a 
common  practice.  All  parties  when  in  power  have 
adopted  it.  Many  abuses  and  great  waste  of  public 
money  have  in  this  way  crept  into  appropriation  bills. 
The  public  opinion  of  the  country  is  against  it.  The 
States  which  have  recently  adopted  constitutions 
have  generally  provided  a  remedy  for  the  evil  by 
enacting  that  no  law  shall  contain  more  than  one 
subject,  which  shall  be  plainly  expressed  in  its  title. 
The  constitutions  of  more  than  half  the  States  contain 
substantially  this  provision."  *  *  *  "  Xhe  prin- 
ciple [maintained  by  Congress]  is  that  the  House  of 
Representatives  has  the  sole  right  to  originate  bills 
for  raising  revenue,  and  therefore  has  the  right  to 
withhold  appropriations  upon  which  the  e.xistence  of 
the  government  may  depend,  unless  the  Senate  and 
the  President  shall  give  their  assent  to  any  legisla- 
tion which  the  House  may  sc:e  fit  to  attach  to  appro- 
priation bills.  To  establish  this  princijjle  is  to  make 
a  radical,  dangerous  and  unconstitutional  change  in 
the  character  of  our   institutions."     *     *     *      "The 


36*  AMERICAN  CONSTITUTIONS. 

new  doctrine,  if  maintained,  will  result  in  a  consolida- 
tion of  unchecked  and  despotic  power  in  the  House 
of  Representatives.  A  bare  majority  of  the  House 
will  become  the  Government.  The  Executive  will 
no  longer  be  what  the  framers  of  the  Constitution 
intended,  an  equal  and  independent  branch  of  the 
Government."  *  *  ^'^  "The  House  alone  will  be 
the  judge  of  what  constitutes  a  grievance  and  also  of 
the  means  and  measure  of  redress."  *  *  *  "Be- 
lieving this  bill  is  a  dangerous  violation  of  the  spirit 
and  meaning  of  the  Constitution,  I  am  compelled  to 
return  it  to  the  House  in  which  it  originated  without 
my  approval." 

There  was  a  vast  difference  between  the  position 
of  President  Hayes  and  that  of  President  Johnson. 
In  1867  the  dominant  party  in  Congress  had  the 
requisite  strength  to  pass  the  bill  over  a  veto ;  while 
in  1879  they  had  only  a  bare  majority  in  each  House, 
and  could  only  control  the  Executive  by  threatening 
to  refuse  the  supplies  necessary  for  the  maintenance 
of  the  Government,  or,  as  it  was  tersely  put  by  Gen- 
eral Garfield,  they  threatened  to  "starve  the  Gov- 
ernment," unless  their  demands  were  complied  with. 
It  was  an  entirely  new  line  of  attack  upon  the 
Executive,  and  having  met  with  absolute  defeat,  it 
is  not  likely  to  be  renewed  by  either  political  party 
in  our  day. 

Appointment  and  Removal  of  Officers. 

But  the  most  direct  assault  on   the   power  of  the 
President  is  the  Senate's  encroachment  on  his  power 


AMERICAN  CONSTITUTIONS.  37 

of  appointment  and  removal.  The  terms  of  the  ap- 
pointing power  are  distinctly  stated  in  the  Constitu- 
tion, but  nothing  is  said  of  removals.  The  question 
came  up  in  1 789,  under  Washington's  administra- 
tion, whether  Cabinet  officers  appointed  by  the  Pres- 
ident with  the  consent  of  the  Senate  could  be  re- 
moved by  the  President  alone,  or  whether  their  re- 
moval should  require  the  consent  of  the  Senate. 
Congress,  influenced  perhaps  by  the  exalted  charac- 
ter of  Washington,  passed  the  bill  allowing  the  Pres- 
ident the  power  of  removal  in  these  cases.  This 
action  was  opposed  by  many  of  the  wisest  men  of 
that  day  ;  a  powerful  minority  resisted  it  in  the 
House,  and  it  passed  the  Senate  only  by  the  casting- 
vote  of  the  Vice  President.  Of  course  it  carried 
with  it  the  acknowledgment  of  the  principle,  that 
the  power  of  removing  officers  lay  in  the  Executive, 
though  I  do  not  suppose  that  any  man  then  imagined 
the  terrible  abuse  which  would  inside  of  half  a  cen- 
tury follow  the  use  of  that  power.  The  action  of 
Congress  in  this  matter  is  spoken  of  by  Story  as 
"  the  most  extraordinary  case  in  the  history  of  the 
government,  of  a  power  conferred  by  implication  on 
the  Executive  by  the  dissent  of  a  bare  majority  of 
Congress,  which  has  not  been  questioned  on  many 
other  occasions."  Very  soon,  however,  after  the 
publication  of  this  opinion,  this  "legislative  con- 
struction," as  it  was  called,  of  a  constitutional  pro- 
vision, became  the  subject  of  a  very  spirited  debate 
in  Congress  during  Jackson's  first  term  of  office. 
Story's  Commentaries  on  the  Constitution  contain  an 
interesting  discussion  of  the  original  debate  in   Con 


3 8  AMERICAN  CONSTITUTIONS. 

gress  in  1789,  while  a  careful  review  of  the  Presi- 
dent's side  of  the  question  may  be  found  in  John- 
son's Message,  March  2,  1867,  vetoing  the  Tenure 
of  Office  Act. 

To  THE  Victors  Belong  the  Spoils. 

N(3  marked  result  followed  from  this  policy  adopted 
in  1789,  till  Jackson  became  President  In  1829,  when, 
as  is  well  known,  a  general  removal  of  civil  officers 
took  place  for  the  first  time.  This  created  a  great 
outcry  and  much  bitter  feeling.  A  very  able  debate 
on  the  President's  course  took  place  in  the  Senate,  in 
which  the  Whigs  censured  him  for  exceeding  his 
rightful  powers ;  no  further  action,  however,  ensued,  as 
the  House  of  Representatives  was  friendly  to  Jackson. 
But  from  this  time  forward  a  change  came  over  the 
policy  of  the  Government  in  these  matters.  "To  the 
victors  belong  the  spoils,"  was  recognized  as  the  gov- 
erning motive  of  each  party  when  in  power.  Each 
President  in  turn,  on  taking  his  seat,  removed  his  ene- 
mies from  public  office  and  appointed  his  friends.  At 
last  there  came  a  time  in  1867,  when  the  opposition 
to  the  President  was  strong  enough  in  Congress  to 
control  his  policy,  and  over-ride  his  vetoes,  for  the  first 
time  in  the  history  of  the  country;  and  under  John- 
son, the  Tenure  of  Office  Act  was  passed,  which  re- 
versed the  precedent,  and  forbade  the  displacement 
of  an  officer  appointed  with  the  consent  of  the  Senate, 
unless  removed  by  a  similar  formality.  President 
Johnson  vetoed  the  bill,  but  it  was  passed  over  his 
head,  and,  in   a  modified  form,  it   is   the  law  to-day. 


AMERICAN  CONSTITUTIONS.  39 

On  the  accession  of  General  Grant  to  the  Presidency, 
the  law  was  amended,  but  the  Senate  have  never 
parted  with  the  power.  Thus  the  power  of  removal, 
without  the  consent  of  the  Senate,  was  taken  from  the 
Executive. 

But  great  as  this  loss  was  to  the  President,  he  has 
sustained  a  still  greater  one  in  the  virtual  depriyal  of 
the  power  of  appointment.  Already  in  the  days  of 
Jackson,  the  party  leaders  in  the  Senate  began  to 
claim  the  appointment  of  their  supporters  to  public 
office,  and  this  practice  was  steadily  gaining  ground 
with  each  Administration.  The  contest  with  Presi- 
dent Johnson  expanded  the  power  and  the  ambition 
of  the  Senate  still  more,  and  the  Senators  now  de- 
manded, as  the  price  of  their  support  of  the  Ad- 
ministration, that  the  more  important  Federal  ap- 
pointments in  their  respective  States  should  be  made 
from  their  adherents.  The  Executive  was  obliged 
to  yield — even  Grant  could  not  resist — and  so  the 
modern  "boss"  was  established.  To-day  the  Sena- 
torial "  boss"  controls  the  large  majority  of  Presiden- 
tial appointments,  in  unquestionable  violation  of  the 
intent  of  the  Constitution. 

There  is  a  curious  trifle  in  the  matter  of  social 
etiquette  at  Washington,  which  marks  the  rising  tide 
of  Senatorial  dignity  at  the  time  we  have  been  speak- 
ing of.  In  Washington  society,  as  is  well  known, 
social  precedence  follows  strictly  the  order  of  political 
rank;  before  Johnson's  time,  the  Cabinet  officers 
out-ranked  the  Senators;  but,  under  Grant,  the  Sena- 
torial dignity  claimed  a  place  at  the  dinner  table 
above  the  Secretary,  and  the  claim  was  recogiii/cd. 


40  AMERICAN  CONSTITUTIONS. 

This  seems  laughable,  but  the  demand  was  backed 
by  real  power. 

This  vicious  and  unconstitutional  practice  of  dic- 
tating Executive  appointments  has  grown,  until  now 
the  "courtesy  of  the  Senate,"  so  called,  that  is,  the 
tacit  agreement  with  each  other  to  divide  the  spoils, 
often  over-rides  all  considerations  of  individual  fit- 
ness or  of  public  interest.  The  climax  was  reached, 
when  two  United  States  Senators  resigned  their 
seats,  because  they  could  not  have  their  share  of  the 
patronage.  The  world  moves  on,  and  there  is  a  high- 
water-mark  for  every  iniquity.  The  Dred  Scott 
case  marked  the  full  swell  of  the  tide  of  the  power 
of  slavery ;  the  veto  of  the  Army  bill  in  1879  sounded 
the  decline  of  "political  riders."  The  resignation  of 
the  New  York  Senators  was  the  dawn  of  a  new  era 
without  "bosses."  It  brings  the  hope  of  something 
better  than  a  restoration  of  the  power  of  removal  to 
the  Executive.  We  want  no  more  Jacksons;  the 
concentration  of  all  this  power  in  one  man  would  be 
more  dangerous  than  in  a  Senate  of  76  members; 
but  we  look  forward  for  that  better  time  when  there 
shall  be  no  appointment  except  for  fitness,  and  no 
removal  but  for  just  cause. 

Jackson's  Extraordinary  Claims. 

In  reviewing  the  political  history  of  the  country, 
we  find  that  while  Congress  and  the  Executive  have 
often  been  at  variance,  they  have  three  times  openly 
joined  battle  on  the  extent  of  their  prerogatives. 
The  first  fight  was  between  Jackson  and  the  Whigs 


AMERICAN  CONSTITUTIONS.  4^ 

in  1834,  the  second  between  Johnson  and  the  Repub- 
licans in  1867,  and  the  third  between  Hayes  and  the 
Democrats  in  1879.  I  have  already  referred  to 
Jackson's  wholeside  decapitation  of  the  Federal  offi- 
cials, upon  his  accession  to  the  Presidency,  and  the 
indignation  expressed  by  his  opponents  at  this  new- 
departure  in  political  warfare.  Towards  the  end  of 
his  first  term,  he  became  involved  in  a  war  with  the 
United  States  Bank,  and  vetoed  the  bill  extending 
its  charter,  alleging  among  other  objections,  that  the 
charter  was  unconstitutional,  although  the  Supreme 
Court  had  sustained  the  original  Act.  In  his  veto 
message  occurs  this  remarkable  passage:  "If  the 
opinion  of  the  Supreme  Court  covered  the  whole 
ground  of  this  Act,  it  ought  not  to  control  the  co-or- 
dinate authorities  of  this  Government.  The  Con- 
gress, the  Executive,  and  the  Court,  must  each  for 
itself,  be  guided  by  its  own  opinion  of  the  Constitu- 
tion. Each  public  officer  who  takes  an  oath  to  sup- 
port the  Constitution,  swears  that  he  will  support  it 
as  he  understands  it,  and  not  as  it  is  understood  by 
others.  It  is  as  much  the  duty  of  the  House  of 
Representatives,  of  the  Senate,  and  of  the  President, 
to  decide  upon  the  constitutionality  of  any  bill  or 
resolution  which  may  be  presented  to  them  for  passage: 
or  approval,  as  it  is  of  the  Supreme  Judges,  when  it 
may  be  brought  before  them  for  judicial  decision. 
The  opinion  of  the  Judges  has  no  more  authority 
over  Congress  than  the  opinion  of  Congress  has  over 
the  Judges,  and  on  that  point  the  President  is  inde- 
pendent of  both.  The  authority  of  the  Supreme 
Court    must  not,  therefore,  be   permitted    to   control 


4-  AMEBIC  AN  CONSTITUTIONS. 

Congress  or  the  Executive,  when  acting  in  their 
legislative  capacities,  but  to  have  only  such  influence 
as  the  force  of  their  reasoning  may  deserve." 

Jackson  was  an  exceedingly  positive,  self-willed, 
arbitrary  man,  of  remarkable  tenacity  of  purpose. 
He  was  dear  to  the  people  as  the  hero  of  New  Or- 
leans, and  was  universally  respected  as  a  man  of 
sturdy  honesty,  integrity  of  purpose  and  inflexible 
patriotism.  His  fight  with  the  bank  increased  his 
popularity,  for  it  made  him  the  champion  of  the  poor 
as  against  the  rich,  of  the  laboring  classes  as  against 
the  moneyed  interests,  and  shortly  after  the  veto,  he 
was  re-elected  President.  Jackson's  re-election  should 
not  be  regarded  as  a  verdict  by  the  people  in  favor 
of  the  spoils  system,  or  of  his  despotic  assumption  of 
power,  but  as  an  expression  of  their  love  for  him  as 
a  soldier,  and  their  prejudice  against  what  they  con- 
ceived to  be  the  moneyed  rule  as  represented  by  the 
Whigs.  Emboldened  by  his  re-election,  he  deter- 
mined to  remove  the  Government  deposits  from  the 
United  States  Bank,  although  Congress  had  declared 
in  favor  of  their  retention  there.  Duane,  the  Secre- 
tary of  the  Treasury,  refused  to  do  it,  Jackson  re- 
moved him  and  appointed  Taney,  afterwards  Chief 
Justice  of  the  Supreme  Court,  as  his  successor,  and 
Taney  removed  the  deposits  in  September,  1833. 
When  the  new  Congress  met  in  December,  the  House 
was  favorable  to  Jackson,  but  the  Senate  resolved 
March  28,  1834,  that  "the  President,  in  the  late  pro- 
ceedings in  relation  to  the  public  revenue,  has  as- 
sumed upon  himself  authority  and  power  not  conferred 
by  the  Constitution  and  laws,  but  in  derogation  of 
both." 


AMERICAN  CONSTITUTIONS.  43 

Jackson  replied  by  the  famous  "  Protest,"  which 
he  demanded  should  be  entered  on  the  journal  of  the 
Senate.  He  justified  his  removal  of  the  Secretary 
of  the  Treasury  by  the  bold  claim  that  "  the  power 
of  removal,  which  like  that  of  appointment,  is  an 
original  Executive  power,  is  left  unchecked  by  the 
Constitution,  in  relation  to  all  Executive  officers  for 
whose  conduct  the  President  is  responsible;"  as 
though,  instead  of  his  being  invested  only  \\iih 
granted  powers,  there  were  original  Executive  powers, 
part  of  which  only  had  been  removed  by  the  Consti- 
tution, while  the  rest  remained.  In  another  part  of 
the  Protest,  he  declared  "  the  President  is  the  direct 
representative  of  the  American  people,  elected  by  the 
people  and  responsible  to  them,"  while  "the  Senate 
is  a  body  not  directly  amenable  to  the  people," 
thus  assuming  a  kind  of  patriarchal  duty  to  stand 
between  the  Senate  and  the  people.  The  Senate 
passed  a  second  series  of  resolutions,  to  the  effect 
that  the  Protest  "ascribed  powers  to  the  President 
irreconcilable  with  the  authority  of  the  two  Houses 
of  Congress  and  with  the  Constitution,"  and  they  re- 
fused to  enter  the  Protest  on  their  journal,  and  here 
the  matter  ended  for  a  while.  The  House  being- 
friendly  to  Jackson,  the  Senate  could  do  no  more. 
In  the  next  Congress,  however,  Jackson's  friends 
controlled  the  Senate  and  expunged  the  obnoxit)us 
resolution  of  March  28th,  1834,  from  the  Senate 
journal.  When  I  was  a  child,  the  memory  of  this 
expunging  resolution  was  fresh,  and  1  w('ll  rememl)er 
the  indignation  of  the  Whigs  at  what  they  called  a 
mutilation  of  the  records.      The  stuileiu   ol   polilieal 


44  AMERICAN  CONSTITUTIONS. 

history  will  find  a  masterly  statement  of  the  position 
of  Jackson's  opponents  in  Webster's  speeches  on  the 
Veto  of  the  Bank  Bill,  the  Removal  of  the  Deposits, 
the  President's  Protest  and  the  Expunging  Resolu- 
tion. No  President  after  Jackson  ever  dared  to  take 
the  stand  he  had  occupied  as  to  the  relative  functions 
of  Congress  and  the  President, 

His  claim  of  original  Executive  power,  his  assump- 
tion of  a  peculiarly  close  relation  to  the  people  em- 
powering him  to  stand  between  them  and  the  Senate 
as  the  champion  of  popular  rights,  and  his  declara- 
tion of  his  right  to  be  the  judge  of  the  constitution- 
ality of  laws,  would,  if  allowed,  have  made  him  little 
less  than  dictator.  Von  Hoist  quotes  Story  as  say- 
ing of  Jackson  :  "I  confess  that  I  feel  humiliated  at 
the  truth,  which  cannot  be  disguised,  that  though  we 
live  under  the  form  of  a  republic,  we  are  in  fact  under 
the  rule  of  a  single  man."  Jackson's  unbounded 
popularity  sustained  him  in  these  arbitrary  measures. 
The  people  admired  him  for  his  military  glory,  the 
masses  looked  up  to  him  as  their  champion  against 
the  rich,  all  patriots  respected  him  for  the  stand  he 
took  against  nullification,  while  even  his  enemies 
gave  him  the  credit  of  positive  convictions  and  fear- 
lessness in  carrying  them  out.  Fortunately  for  the 
country,  he  had  no  successor  able  to  wear  his  mantle. 
Congress  resumed  its  accustomed  functions,  and 
throughout  the  Presidency  of  Van  Buren,  was  in  har- 
monious relations  with  the  Executive. 

But  in  Tyler's  administration,  the  President  was 
once  more  in  open  conflict  with  both  Houses  of  Con- 
gress, a  conflict  embittered  by  the  fact  that  he  had 


AMERICAN  CONSTITUTIONS.  45 

been  elected  Vice  President  by  the  dominant  party. 
Twice  he  vetoed  the  bill  re-establishing  the  United 
States  Bank,  and  twice  he  vetoed  the  Tariff  Bill,  on 
which  had  been  tacked  a  bill  for  the  distribution  of 
the  proceeds  of  the  public  lands.  By  this  time,  the 
indignation  of  the  Whigs  was  thoroughly  aroused; 
the  committee  of  the  House,  to  which  the  veto  had 
been  referred,  with  John  Ouincy  Adams  at  |k  head, 
denounced  this  wholesale  exercise  of  the  veto  power 
as  tyrannical,  and  declared  they  would  impeach  the 
President,  were  there  any  prospect  of  his  conviction ; 
and  Henry  Clay  introduced  a  proposition  to  amend 
the  Constitution  so  that  a  majority  vote  in  both 
Houses  of  Congress  would  over-ride  a  veto.  This 
proposition  received  a  majority  of  the  votes  of  the 
House,  but  not  the  necessary  two-thirds.  The  Presi- 
dent replied  to  these  violent  attacks  by  a  Protest, 
much  in  the  spirit  of  Jackson's;  and  here  the  matter 
ended,  as  the  Whigs  had  only  a  bare  majority  in  each 
House,  and  could  follow  it  no  farther. 

Congress  and  Andrew  Johnson. 

There  was  no  open  breach  after  this  between  the 
President  and  Congress  till  1866  and  1867.  Johnson, 
who  was  as  positive  as  General  Jackson,  but  without 
his  support,  either  in  Congress  or  by  the  people,  had 
resolved  upon  a  plan  of  restoring  the  rebellious  States 
to  the  Union.  The  Republican  leaders  disapproved 
of  the  President's  measures,  and  having  control  of 
both  Houses,  by  over  two-thirds  of  each,  they  re- 
solved upon  a  policy  of  their  own.      in  piirsnaiuc  ol 


46  AMERICAN  CONSTITUTIONS. 

this  policy  Congress  passed  the  following  four  bills,  of 
vital  importance  in  the  matter  of  reconstruction:  The 
Civil  Rights  Bill,  conferring  Federal  citizenship  on 
all  persons  born  in  the  United  States,  and  ensuring 
them  full  and  equal  benefit  of  all  laws;  the  Recon- 
struction Bill,  reversing  the  President's  policy  and 
definino-    the    terms  and   methods  under  which  the 

o 

States  lately  in  rebellion  could  resume  their  places  in 
the  Government;  the  Civil  Tenure  Act,  stripping 
him  of  the  power  of  removing  civil  officers  without 
the  consent  of  the  Senate;  and  the  Electoral  College 
Bill,  defining  what  votes  should  be  counted  for  Presi- 
dent. All  these  Johnson  promptly  vetoed,  and  they 
were  immediately  passed  over  his  veto.  Congress 
also  added  to  the  Army  Appropriation  Bill  a  provis- 
ion, which  virtually  deprived  him  of  the  use  of  the 
army  in  aid  of  his  policy  of  reconstruction,  and  dis- 
banded the  militia  of  the  rebellious  States.  The 
President  protested  against  this  provision,  but  signed 
the  bill.  Thus  Congress  rejected  the  President's 
plan  for  the  restoration  of  the  Southern  States  to  the 
Union,  and  adopted  one  of  their  own,  while  at  the 
same  time  they  stripped  him  of  the  power  to  thwart 
their  policy. 

The  contest  ended  in  the  impeachment  of  the 
President,  which  failed  of  success  by  a  vote  of  35  to 
1 9 ;  one  vote  more  would  have  deprived  him  of  his 
seat.  It  is  the  most  dramatic  scene  in  the  history  of 
our  country,  this  mighty  struggle  for  mastery  be- 
tween these  two  grand  powers  of  the  Government. 
I  am  not  concerned  here  with  the  right  or  the  policy 
of  these  measures,  but  simply  rehearse  them  to  show 


AMERICAN  CONSTITUTIONS.  47 

the  tremendous  power  of  Congress,  and  the  feeble- 
ness of  the  Executive  making  war  upon  it.  Con- 
gress has  absolute  control  of  the  Treasury,  and  when 
the  dominant  party  numbers  two-thirds  of  each  House 
it  holds  the  absolute  power  of  legislation,  within  the 
Constitution,  and  the  power  of  impeachment,  John- 
son appealed  to  Jackson's  policy,  but  was  powerless 
to  follow  his  example. 

The  third  battle,  that  between  Hayes  and  the 
Democrats,  has  been  related  in  sufficient  detail  al- 
ready. Thus  I  have  sketched  the  leading  features 
of  encroachment,  whether  by  President  or  Congress 
upon  its  co-ordinate  power,  since  1789.  Jackson's 
protest  in  1834  was  the  climax  of  Presidential  claims. 
Johnson's  impeachment  marks  the  summit  of  self- 
assertion  by  Congress.  Since  the  accession  of  Grant, 
the  political  pendulum  has  been  slowly  swing- 
ing towards  a  limitation  of  the  relative  power  of 
Congress.  Hayes'  victory  over  the  political  riders, 
and  the  steadfast  refusal  of  both  Hayes  and  Garfield 
to  listen  to  the  dictation  of  Senatorial  leaders,  are 
marked  features  of  the  last  six  years.  Two  bills  re- 
cently before  Congress  emphasize  this  tendency. 
One,  which  has  become  the  law  of  the  land,  is  the 
Civil  Service  Reform  Bill,  which  is  really  a  bill  to 
limit  the  patronage  of  Senators;  the  other  is  the 
proposition  to  change  the  order  of  succession,  sub- 
stituting after  the  Vice  President,  the  members  of 
the  Cabinet,  in  place  of  the  President  of  the  Sciialc 
and  the  Speaker  of  the  House. 


48  AMERICAN   CONSTITUTIONS. 

The  Veto  Power. 

The  use  of  the  veto  power  demands  a  brief  no- 
tice here,  for  an  impression  prevails  that  it  is  be- 
coming more  common  in  these  latter  days.  This 
is  not  true  relatively,  when  we  consider  the  enor- 
mous increase  of  legislation  by  Congress.  I  have 
been  at  considerable  pains  to  gather,  not  only  all 
the  vetoes,  but  so  far  as  possible  all  the  bills  re- 
tained by  the  Presidents,  after  the  adjournment  of 
Congress,  or  to  use  the  common  phrase,  "pocketed." 
My  list  may  not  be  absolutely  complete,  but  is  very 
nearly  so.  I  find  from  Washington  to  Arthur,  in- 
clusive, seventy-seven  vetoes  of  both  kinds.  Forty- 
three  of  these  emanated  from  four  Presidents,  viz: 
Jackson,  eleven,  Tyler,  ten,  Johnson,  thirteen,  Hayes, 
nine.  All  these  administrations  were  periods  of 
fierce  conflict  with  a  hostile  Congress.  Add  Madi- 
son, six.  Pierce,  five,  Buchanan,  seven,  and  Grant, 
six,  and  we  have  sixty-seven  out  of  seventy-seven 
vetoes;  and  only  ten  remain  to  the  other  twelve 
Presidents,  covering  ten  full  and  four  fractional  terms. 

Dividing  the  administrations  into  four  consecutive 
periods,  we  have  this  result:  From  Washington  to 
John  Quincy  Adams  inclusive,  a  period  of  forty 
years,  there  were  nine  vetoes;  from  Jackson  to  Tyler, 
in  sixteen  years,  there  were  twenty-one  vetoes ;  from 
Polk  to  Lincoln,  twenty  years,  eight  vetoes;  from 
Johnson  to  Hayes,  again  sixteen  years,  twenty-eight 
vetoes.  Five  subjects  comprise  the  majority  of 
all  the  vetoes:  Internal  Improvements,  seventeen. 
United    States    Bank,    four;     Reconstruction    Acts, 


AMERICAN  CONSTITUTIONS.  49 

seven;  Rebel  Claims,  four;  Interference  at  Elections 
by  marshals  and  soldiers,  seven,  in  all  thirty-nine 
out  of  seventy-seven.  Ten  bills  have  been  passed 
over  vetoes,  one  under  Tyler,  seven  under  Johnson, 
one  under   Hayes,    and  one  under  Arthur. 

Fierce  attacks  have  been  made  from  time  to  time 
in  Congress  upon  the  veto  power,  charging  the  Presi- 
dents with  despotic  use  of  it,  and  claiming  that  the 
intention  of  the  founders  of  the  Government  was  to 
limit  its  use  to  hasty  or  unconstitutional  legislation; 
but  the  Constitution  itself  makes  no  such  limitation, 
nor  does  the  early  practice  under  it ;  the  second  veto 
of  Washington  being  based  solely  on  expediency  and 
the  maintenance  of  the  public  faith.  The  veto  power 
may  be  dangerous,  as  all  power  is  in  the  hands  of 
bad  men,  but  this  review  does  not  justify  the  common 
impression  of  its  growing  abuse.  It  comes  into 
prominence  when  the  President  is  brought  face  to 
face  with  a  hostile  Congress,  eager  to  cross  swords 
with  him,  but  when  the  two  great  powers  are  on 
friendly  terms,  as  is  usually  the  case,  the  knowledge 
of  its  hidden  power  acts  only  as  a  check  upon  crude 
legislation. 

Our  examination  has  thus  far  shown  that  the 
disposition  of  Legislatures  is  aggressive.  Every 
popular  body  tries  to  overstep  the  bounds  of  its 
lawful  power,  from  the  American  Congress  down  to 
the  County  Committee.  The  Revolutionary  fathers 
recoiling  from  the  tyranny  of  royal  Governors  gave 
too  much  scope  to  legislative  authority.  We  have 
been  steadily  hemming  in  that  authority  in  our  State 
Constitutions  tor  a  ((lUur)',  and  expanding  th(,'  pow- 
ers of  our  Governors, 


so  AMERICAN  CONSTITUTIONS. 

The  Federal  Constitution,  fortunately  framed  later, 
in  the  light  of  ten  years'  experience,  was  much  better 
balanced.  But  a  different  principle  comes  in  here. 
Cooley  thus  defines  the  distinction:  "It  is  to  be 
borne  in  mind  that  there  is  a  broad  distinction  between 
the  Constitution  of  the  United  States  and  the  Con- 
stitutions of  the  States,  as  regards  the  powers  which 
may  be  exercised  under  them.  The  Government  of 
the  United  States  is  one  of  enumerated  powers;  the 
Governments  of  the  States  are  possessed  of  all  the 
general  powers  of  legislation.  When  a  law  of  Con- 
gress is  assailed  as  void,  we  look  in  the  National 
Constitution  to  see  if  the  grant  of  specified  powers 
is  broad  enough  to  embrace  it;  but  when  a  State  law 
is  attacked  on  the  same  ground,  it  is  presumably  valid 
in  any  case,  and  this  presumption  is  a  conclusive  one, 
unless  in  the  Constitution  of  the  United  States  or  of 
the  State,  we  are  able  to  discover  that  it  is  prohibited. 
We  look  in  the  Constitution  of  the  United  States  for 
grants  of  legislative  power,  but  in  the  Constitution 
of  the  State  to  ascertain  if  any  limitations  have  been 
imposed  upon  the  complete  power  with  which  the 
legislative  department  of  the  State  was  vested  in  its 
creation.  Congress  can  pass  no  laws  but  such  as  the 
Constitution  authorizes,  either  expressly  or  by  clear 
implication;  while  the  State  Legislature  has  jurisdic- 
tion of  all  subjects  on  which  its  legislation  is  not  pro- 
hibited. 'The  law-making  power  of  the  State,' it 
is  said  in  one  case,  '  recognizes  no  restraints  and  is 
bound  by  none,  except  such  as  are  imposed  by  the 
Constitution.  That  instrument  has  been  aptly  termed 
a  legislative  act  by  the  people  themselves  in  their 


AMERICAN  CONSTITUTIONS.  5  1 

sovereign  capacity,  and  is  therefore  the  paramount 
law.  Its  object  is  not  to  grant  legislative  power,  but 
to  confine  and  restrain  it.  Without  the  constitu- 
tional limitations,  the  power  to  make  laws  would  be 
absolute.'  " 

This  clear  distinction  suggests  to  us  that  the  State 
Legislatures,  inheriting  the  paramount  power  of  the 
people,  need  stricter  limitations  than  the  Federal 
Congress,  which  acts  only  by  virtue  of  granted 
powers.  On  the  other  hand,  the  State  Executive 
can  be  safely  trusted  with  much  broader  powers 
than  the  President,  because  he  is  only  a  local  officer; 
his  term  is  generally  shorter  than  the  President's;  he 
is  more  directly  responsible  to  the  people,  and  if  his 
powers  are  found  by  experience  to  be  too  full,  it  is 
comparatively  easy  to  amend  the  Constitution,  from 
which  he  derives  them.  His  administration  may  be 
corrupt  or  inefficient,  but  would  never  be  fatal  to 
the  liberties  of  the  people,  for  he  is  restrained  by  the 
Constitution  of  the  United  States,  which  guarantees 
republican  government  and  the  equality  of  all  men 
before  the  law.  But  the  President  of  the  United 
States,  controlling  the  military  power  of  the  country, 
and  backed  by  an  army  of  100,000  civil  officers, 
wields  a  power  which  menaces  the  liberties  of  the 
people,  unless  controlled  by  a  faithful  Judiciary,  and, 
above  all,  by  a  watchful  Congress.  His  influence  is 
not  to  be  measured  by  the  boundaries  of  the  P'ederal 
power  as  expressed  in  the  Constitution.  His  army 
of  civil  officers  often  gives  him  almost  absolute  con- 
trol of  Stat(!  politics.  1  lit  may  enter  a  State,  and 
control   its   political    acti(jn,   manage   its  conventions 


52  AMERICAN  CONSTITUTIONS. 

and  dictate  its  local  nominations,  as  we  have  too 
often  seen  done.  His  power  is  tremendous,  and  our 
safety  lies  in  the  shortness  of  his  term  and  the  jeal- 
ousy and  watchfulness  of  Congress. 

Government  by  parties,  which  has  become  the 
form  of  our  political  life,  has,  however,  brought  one 
dangerous  feature  of  legislative  encroachment,  the 
right  claimed  by  Congress  to  determine  the  valid- 
ity of  the  electoral  vote  of  any  State  in  a  Presi- 
dential election.  We  have  had  one  narrow  escape 
from  civil  war  through  this  source.  Such  a  contin- 
gency may  never  arise  again,  but  so  great  a  peril 
must  be  guarded  against.  If  Congress  can  by  this 
means  make  a  President,  the  system  so  carefully 
devised  to  maintain  the  independence  of  the  Execu- 
tive is  broken  down,  and  we  are  drifting  upon  the 
shoals  so  much  feared  by  the  fathers  of  the  Consti- 
tution. The  same  spirit  which  is  always  ready  to 
unseat  a  member  in  a  nearly-balanced  House  of 
Representatives,  for  the  purpose  of  increasing  the 
working  majority  of  the  party,  would  not  scruple  in 
a  closely  contested  Presidential  election  to  grasp  at 
any  technicality  to  win  the  grander  prize,  the  control 
of  the  Federal  Government.  These  fears  may 
never  be  realized,  but  they  threaten  the  most  serious 
invasion  of  the  independence  of  the  Executive  ever 
yet  attempted. 

If  we  pass  by  these  dangers  as  belonging  to  the 
future  rather  than  the  past,  we  may  conclude  as  the 
result  of  our  inquiry  into  the  changes  in  the  Federal 
Government  that  there  has  been  no  great  alteration 
in  the   relative  powers  of  Congress  and  the  Presi- 


AMERICAN  CONSTITUTIONS.  53 

dent  since  1789.  The  bold  position  assumed  by 
Jackson  was  abandoned  by  his  successors,  and  the 
power  of  appointment  and  removal  which  he  wielded 
with  such  success,  the  later  Presidents  have  been 
compelled  to  surrender  or  share  with  their  political 
supporters  in  Congress.  In  this  respect  and  in  some 
others  Congress  has  encroached  somewhat  upon  the 
powers  formerly  possessed  by  the  President,  but 
there  has  been  no  material  change. 


54  AMERICAN   CONSTITUTIONS. 


V. 

The  Judiciary. 

So  far  our  attention  has  been  mainly  occupied 
with  the  struggles  for  power  between  what  may  be 
called  the  two  great  political  departments  of  the 
State,  those  who  make  the  laws  and  those  who  exe- 
cute them,  and  the  efforts  of  the  people  to  curb  them 
both.  The  relations  of  each  of  these  powers  to  the 
Judiciary,  the  interpreters  of  the  law,  now  remain  to 
be  considered,  and  it  will  be  clearly  seen  that  the 
Courts  have  increased  steadily  in  power  and  inde- 
pendence, so  far  as  their  relations  to  the  two  co- 
ordinate branches  of  government  are  concerned. 
This  steady  growth  of  the  authority  of  the  Judiciary 
is,  to  my  mind,  the  most  remarkable  and  unique  feat- 
ure in  the  history  of  our  system  of  government. 
Fifty  years  ago  the  power  of  the  Courts  excited  the 
wonder  of  De  Tocqueville,  and  the  lapse  of  time  since 
then  has  only  increased  the  marvel.  The  change  has 
been  silent  but  steady;  being  outside  the  storms  of 
active  politics,  it  has  been  little  observed  and  little 
spoken  of,  but  it  has  certainly  transformed  the  gov- 
ernments within  themselves,  and  to  the  Federal 
Union  it  has  furnished  the  main  bulwark  of  its  power. 
If  there  be  an  essential  difference  between  our  system 
and  the  other  popular  governments  of  the  world,  it 
lies  in   the   unusual   authority  given  to  the   Courts. 


AMERICAN  CONSTITUTIONS.  55 

The  changes  resulting  in  this  increase  of  judicial 
authority  I  will  now  trace;  first  considering  the 
method  of  appointment  of  the  Judges  and  their 
tenure  of  office;  and  to  avoid  repetition,  wherever 
the  Judges  are  spoken  of,  unless  otherwise  qualified, 
the  word  will  be  understood  to  mean  the  highest 
Court,  the  Court  of  last  resort,  whether  of  Colony, 
State  or  United  States, 

Referring  to  what  has  already  been  said  of  the 
colonies,  it  will  be  remembered  that  they  were 
divided  into  three  forms  of  government;  seven  were 
Royal  Provinces,  three  were  Proprietaries  and  three 
were  Charter  Governments.  In  the  Provinces  the 
King  named  the  Governor,  and  the  Governor  ap- 
pointed the  Judges.  In  the  Proprietary  Govern- 
ments the  proprietors  were  the  feudal  representatives 
of  the  King,  and  they  or  the  Governors  chosen  by 
them  named  the  Judges.  Under  the  Charters,  in 
Massachusetts  the  Governor  appointed  the  Judges, 
while  in  Rhode  Island  and  Connecticut  they  were 
chosen  by  the  Legislatures.  In  some  of  the  colonies 
the  Governor's  nomination  required  confirmation  by 
the  Council,  but  as  that  body  was  generally  named 
by  the  Governor,  it  altered  the  case  but  little.  The 
Judges  usually  held  office  for  life,  but  in  every  colony 
the  Crown  claimed  the  right,  as  a  Court  of  last  resort, 
to  receive  appeals  from  the  Colonial  Courts.  It  will 
be  readily  seen  that  where  the  King,  or  his  direct 
representative,  appointed  the  Judges,  and  at  the 
same  time  exercised  an  appellate  jurisdiction  over  all 
their  decisions,  both  the  power  and  the  independence 
of  the  Judges  were  much  circumscribed. 


5^  american  constitutions. 

The  Revolutionary  Constitutions. 

In  the  Constitutions  formed  during  the  Revolu- 
tion for  the  government  of  the  infant  States,  the 
Legislative  branch,  as  already  stated,  swallowed  up 
the  power  of  the  Executive.  In  pursuance  of  the 
same  trend  of  popular  policy,  the  Legislatures  in 
most  of  the  States  controlled  the  appointment  of  the 
Judges.  In  six  States,  Connecticut,  Rhode  Island, 
New  Jersey,  Virginia,  North  Carolina  and  South 
Carolina,  the  Legislature  appointed  the  Judges  di- 
rectly; in  four  States,  New  Hampshire,  Massa- 
chusetts, Pennsylvania  and  Maryland,  they^  were 
appointed  by  the  Governor,  with  the  consent  of  the 
Council;  in  New  York,  by  the  Governor,  with  the 
consent  of  a  special  council  chosen  by  the  Legisla- 
ture from  their  own  number  solely  to  supervise  the 
appointments  of  officers ;  in  Delaware,  by  the  Execu- 
tive and  Legislature;  but  in  Georgia  they  were 
chosen  by  popular  election,  the  first  instance  proba- 
bly in  America  of  an  elective  Judiciary.  The  Judges 
could  everywhere  be  impeached  for  misdemeanor  by 
the  lower  house  of  the  Legislature,  and  tried  by  the 
upper.  In  addition  to  this,  in  five  States  they  could 
be  removed  by  the  Governor,  on  an  address  from 
both  branches  of  the  Legislature,  a  provision  retained 
in  many  State  Constitutions  to-day. 

Besides  this  control  over  the  Judiciary,  the  Legis- 
latures of  five  States,  Rhode  Island,  Connecticut,  New 
York,  New  Jersey  and  South  Carolina,  exercised  dis- 
tinct judicial  functions  apart  from  the  usual  right  of 
trying  impeachments.      This  practice  took  different 


AMERICAN  CONSTITUTTONS.  57 

forms  in  different  States,  usually  the  upper  house,  to- 
gether with  either  the  Governor  or  Lieutenant  Gov- 
ernor, sat  as  a  Chancery  Court  or  as  a  Court  of  Appeals. 
In  Delaware,  on  the  other  hand,  while  the  Leg- 
islature exercised  no  judicial  functions,  the  Chief 
Executive,  called  the  President,  was  ex  officio  a 
member  of  the  Court  of  Appeals.  This  confusion 
of  duties  has  disappeared  with  a  clearer  understand- 
ing of  tlie  bounds  of  the  different  departments,  and 
survives  nowhere  in  the  United  States  at  present. 
These  early  constitutions  provided  that  the  Judges 
should  have  adequate  salaries,  sometimes  fixing  the 
amount ;  two  of  them  providing  that  their  compensa- 
tion should  not  be  diminished  during  their  term 
of  office,  a  provision  very  generally  adopted  now; 
but  they  were  left  everywhere  dependent  on  a  legis- 
lative appropriation  for  their  salaries. 

In  the  instruments  under  review,  the  Judges 
usually  held  office  during  good  behavior;  this 
was  certainly  so  in  eight  States,  New  Hampshire, 
Massachusetts,  New  York,  Delaware,  IMaryland, 
Virginia, .North  Carolina  and  South  Carolina;  New 
York  alone  limiting  their  tenure  to  sixty  years  of  age. 
In  Pennsylvania  and  New  Jersey  the  term  was  seven 
years,  while  in  Georgia  the  Judges  were  chosen  by 
the  people  every  year.  In  Rhode  Island  and  Con- 
necticut, according  to  Bancroft,  they  were  appointed 
by  the  Legislature  annually.  The  Judges  were  usu- 
ally forbidden  to  hold  other  offices,  esjn-clally  of  a 
legislative  character,  which  is  a  very  common  pro- 
hibition in  modern  constitutions. 


5^  american  constitutions. 

Modern  Constitutions. 

The  experience  of  a  century  under  written  consti- 
tutions has  led  our  people  to  a  constantly  clearer 
perception  of  the  natural  boundaries  of  the  three  co- 
ordinate powers  of  government  and  a  constantly 
sharper  limitation  of  their  functions,  each  to  its  own 
field.  The  Legislature  has  been  shorn  of  its  unjust 
supremacy  and  confined  to  its  rightful  limits;  the 
power  of  the  Executive  has  been  restored  to  a  proper 
degree,  and  the  judicial  powers  of  the  Legislature, 
except  the  trial  of  impeachments,  have  been  placed 
in  the  hands  of  the  Judges,  where  they  belong,  mak- 
ing the  balance  of  power  in  the  State  Constitutions 
far  more  perfect  to-day  than  ever  before. 

At  the  same  time  the  people  by  a  natural  jealousy 
have  taken  into  their  own  hands  the  power  of  chos- 
ing  their  officers,  which  before  they  had  delegated  to 
their  representatives.  The  Governors  are  no  longer 
chosen  by  the  Legislatures,  but  by  the  people.  The 
Judges  are  no  longer  chosen  by  the  Legislatures  nor 
appointed  by  the  Governors,  but  in  twenty-six  States 
they  are  elected  directly  by  the  people.  The  twelve 
exceptions  are  as  follows:  In  Delaware  the  Governor 
appoints;  in  Massachusetts  and  New  Hampshire  the 
Governor  with  the  consent  of  the  Council;  in  Florida^ 
Georgia,  Mississippi,  Louisiana  and  New  Jersey,  the 
Governor  with  the  consent  of  the  Senate;  in  Connec- 
ticut, Rhode  Island,  South  Carolina  and  Virginia, 
the  Legislature  elects.  It  will  be  noticed  these  are 
all  old  States,  though  in  some  cases  under  new  Con- 
stitutions.     The    only    States    retaining    the    tenure 


AMERICAN  CONSTITUTIONS.  59 

of  good  behavior  are  New  Hampshire  (limited  to 
seventy  years  of  age),  Massachusetts,  Delaware, 
Florida  and  Rhode  Island ;  in  the  last  named  State  the 
Judges  holding  office  till  the  place  is  declared  vacant 
by  a  majority  of  the  Legislature.  In  the  remaining 
thirty-three  States  the  term  is  fixed,  running  from  two 
years  in  Vermont  to  twenty-one  in  Pennsylvania,  the 
average  term  being  eight  and  one-half  years,  though 
in  New  Hampshire,  Connecticut  and  Maryland  the 
tenure  of  office  is  limited  to  seventy  years  of  age.  Pub- 
lic opinion  seems  of  late  to  lean  towards  longer  terms. 
In  Pennsylvania  the  Judges  are  not  re-eligible,  and  in 
Michigan,  Ohio  and  California  they  are  not  eligible 
for  any  except  judicial  offices  during  the  term  for 
which  they  were  elected,  If  the  Judiciary  ought  to 
be  independent  of  politics,  this  is  certainly  a  wise 
provision.  It  will  perhaps  surprise  the  casual 
reader  to  learn  that  in  thirty  States,  the  Judges  may 
be  removed  by  the  Legislature,  or  by  the  Governor 
on  an  address  from  the  Legislature,  which  usually 
requires  two-thirds  of  each  House.  This  is  inde- 
pendent of  the  right  of  impeachment  which  prevails 
in  every  State  except  Oregon. 

So  much  for  the  methods  of  appointment  and  the 
tenure  of  office.  The  tendency  is  certainly  towards 
placing  the  Judges  on  a  footing  independent  of  the 
other  departments  of  the  Government,  and  directly 
dependent  upon  the  people.  Whether  an  elective 
Judiciary  is  an  improvement  on  the  old  methods  of 
appointment,  is  a  mooted  question;  but  one  thing  is 
certain,  no  inclination  is  manifested  by  the  people  to 
return  to  the  old-fashioned  method  of  appointment 


6o  AMERICAN  CONSTITUTIONS. 

in  those  States  where  the  Judges  are  chosen  directly 
by  popular  vote.  There  is,  however,  a  decided  lean- 
ing towards  longer  terms  of  office  for  Judges  in  the 
States;  and  a  longer  tenure  of  office  with  more  ade- 
quate compensation,  would  certainly  go  a  long  way 
towards  correcting  any  alleged  deterioration  in  the 
quality  of  the  elective  Judiciary. 

The  direct  relations  of  the  Bench  to  the  Executive 
will  next  occupy  our  attention,  and  after  that  the 
power  assumed  by  American  Judges  to  declare  a 
statute  to  be  in  conflict  with  the  Constitution. 

Relations  of  the  Judiciary  to  the  Executive. 

The  power  of  the  Judiciary  to  control  the  action 
of  the  co-ordinate  powers  of  the  Government,  espec- 
ially the  Executive,  either  by  mandamus  or  injunc- 
tion, involves  some  of  the  most  delicate  and  difficult 
questions  in  the  machinery  of  our  governments. 
Most  of  the  cases  concern  its  relations  to  the  Execu- 
tive, and  the  Courts,  with  admirable  discretion,  have 
tried  to  steer  clear  of  a  collision  with  the  rival 
authorities.  "In  many  cases,"  says  Justice  Story, 
"the  decisions  of  the  Executive  and  Legislative 
Departments  become  final  and  conclusive — being 
from  their  very  nature  and  character  incapable  of 
revision.  Thus,  in  measures  exclusively  of  a  politi- 
cal, executive  or  legislative  character,  it  is  plain  that 
as  the  supreme  authority  as  to  these  questions  be- 
longs to  the  Executive  and  Legislative  Departments) 
they  cannot  be  re-examined  elsewhere." 

As  early  as  1802,  the  Federal  Courts,  in  Marbury's 


AMERICAN   CONSTITUTIONS.  6 1 

case,  laid  down  the  rule  that  "questions  in  their  nature 
political,  or  which  are  by  the  Constitution  and  laws 
submitted  to  the  Executive,  can  never  be  made  in 
this  Court."  Johnston's  Political  Cyclopaedia  cites 
several  unsuccessful  attempts  to  involve  the  Presi- 
dent and  the  Supreme  Court  in  conflicts  of  authority. 
In  1807  an  effort  was  made  to  compel  the  personal 
attendance  of  the  President  as  a  witness  in  Burr's 
case,  but  it  did  not  succeed.  In  1861  the  Chief 
Justice  ordered  an  attachment  to  issue  against  an 
army  officer  for  disregarding  the  writ  of  habeas 
corpus  which  had  been  suspended,  but  when  the 
attachment  was  returned  unsatisfied,  the  Chief  Jus- 
tice abandoned  all  proceedings.  In  October,  1865, 
and  until  martial  law  had  ceased  in  the  South,  the 
Court  refused  to  hold  sessions  in  that  section.  In 
1867  the  State  of  Mississippi  applied  to  the  Supreme 
Court  for  an  injunction  forbidding  the  President  to 
execute  the  Reconstruction  Acts,  but  the  injunction 
was  refused.  In  this  case  Chief  Justice  Chase  said: 
"The  Congress  is  the  Legislative  Department  of  the 
Government;  the  President  is  the  Executive  De- 
partment; neither  can  be  restrained  in  its  action  by 
the  Judicial  Department,  though  the  acts  of  both 
when  performed  are,  in  proper  cases,  subject  to  its 
cognizance."  The  "proper  cases"  are  such  as  are  not 
political  in  their  nature. 

But  while  the  Courts  will  not  interfere  in  cases  of 
a  purely  political  nature,  whatever  that  may  mran, 
they  claim  the  right  to  compel  the  performance  by  the 
Executive  of  duties  of  a  purely  ministerial  character. 
The    position     is    thus  stattxl   by  Chancellor    Kent: 


62  AMEBIC  AN  CONSTITUTIONS. 

"The  principle  settled  in  Marbury's  case  was  that 
the  official  acts  of  the  heads  of  the  Executive  De- 
partment as  organs  of  the  President,  which  are  of  a 
political  nature,  and  rest  under  the  Constitution  and 
laws,  in  Executive  discretion,  are  not  within  judicial 
cognizance.  But  when  duties  are  imposed  upon  such 
heads,  affecting  the  rights  of  individuals,  and  which 
the  President  cannot  lawfully  forbid, — as  for  instance, 
to  record  a  patent,  or  furnish  a  copy  of  a  record, — 
the  person  in  that  case  is  the  officer  of  the  law  and 
amenable  thereto  in  the  ordinary  course  of  justice." 
This  power  of  the  Courts  to  compel  the  performance 
of  an  act  merely  ministerial  in  its  nature,  was  denied 
by  President  Jefferson,  but  it  has  been  repeatedly 
affirmed  by  the  Supreme  Court,  and  acquiesced  in  as 
established  law.  In  Kendall's  case  it  was  decided 
by  the  Supreme  Court  of  the  United  States  that  the 
Circuit  Court  of  the  District  of  Columbia  had  author- 
ity to  issue  and  enforce  obedience  to  a  mandamus 
requiring  the  performance  of  a  mere  ministerial  act 
by  the  Postmaster  General,  which  neither  he  nor  the 
President  had  any  authority  to  deny  or  control ;  for 
the  Postmaster  General  is  not  subject  to  the  direc- 
tion and  control  of  the  President  with  respect  to  the 
execution  of  duties  imposed  on  him  by  law.  The 
President  has  no  dispensing  power  over  the  law. 
And  more  recently,  in  T/ie  United  States  v.  Schnrz, 
the  Secretary  of  the  Interior  was  compelled  by  man- 
damus to  deliver  a  patent  for  lands  to  the  relator. 
There  are  many  other  cases  in  which  the  same  doc- 
trine has  been  affirmed  in  the  Federal  Courts. 

With  respect  to  the  Executive  officers  of  the  States 


AMERICAN  CONSTITUTIONS.  6 


J 


there  is  a  difference  of  opinion,  the  Courts  being 
about  equally  divided.  In  several  of  the  States  a 
mandamus  will  lie  to  compel  performance  of  purely 
ministerial  duties  by  the  Executive,  while  in  others  it 
has  been  thought  to  be  subversive  of  the  balance  be- 
tween the  three  great  departments. 

Interference    with    the    Independence   of    the 

Courts. 

It  might  be  expected  in  the  violent  changes  of 
political  complexion  constantly  occurring  in  our  gov- 
ernments, that  the  other  departments  must  sometimes 
be  tempted  to  lay  hands  upon  the  Judiciary,  and  try 
to  mould  it  to  their  purposes,  but  such  instances  are 
rare.  This  is  remarkable,  for  the  Courts  inevitably 
reflect  to  a  certain  extent  the  dominant  public  senti- 
ment in  their  decisions,  as  for  example,  the  strong 
centralizing  drift  of  the  Federal  Courts  in  the  time  of 
the  first  Presidents,  the  Dred  Scott  decision  under 
Taney  and  the  Granger  cases  of  1876.  And  when 
that  sentiment  changes,  and  Congress  and  the  Presi- 
dent find  themselves  representing  a  public  feeling 
and  a  public  policy  at  variance  with  the  Courts,  as 
was  the  case  under  Jefferson  and  his  immediate  suc- 
cessors, and  again  under  Lincoln,  we  might  reason- 
ably look  for  some  effort  to  control  its  action,  but  the 
Courts  are  so  strongly  intrench(;d  Ix^hiiid  their  con- 
stitutional independence  that  very  few  assaults  have 
been  made  upon  them. 

In  1801,  at  the  expiration  of  the  Presidential  term 
of  Adams,  a  system  of  sixteen  iM-deral  Circuit  Courts 


64  AMERICAN  CONSTITUTIONS. 

was  established  by  Congress,  and  the  Judgeships 
were  filled  by  men  of  the  Federal  party.  Great  in- 
dignation was  expressed  that  these  appointments 
were  made  at  the  very  close  of  Adams'  term,  and 
the  appointees  were  nicknamed  the  "  Midnight 
Judges,"  because  it  was  said  that  Adams  signed 
their  commissions  at  midnight  of  his  last  day  in 
office.  Party  feeling  ran  so  high  that  at  the  next 
session  of  Congress,  Jefferson  being  President,  the 
Courts  were  abolished  and  the  "Midnight  Judges" 
were  ousted. 

In  1866,  during  President  Johnson's  term,  Con- 
gress reduced  the  number  of  Justices  on  the  Supreme 
Bench  from  ten  to  seven,  to  prevent  his  filling  the 
vacancies  with  his  political  friends.  By  the  statute 
of  1863  the  Court  was  composed  of  a  Chief  Justice 
and  nine  Associate  Justices.  Justice  Catron  died  in 
1865,  and  Congress  passed  the  singular  statute,  pro- 
viding that  "no  vacancy  in  the  office  of  Associate 
Justice  of  the  Supreme  Court  shall  be  filled  by  ap- 
pointment until  the  number  of  Associate  Justices 
shall  be  reduced  to  six,  and  thereafter  the  said  Su- 
preme Court  shall  consist  of  a  Chief  Justice  and  six 
Associate  Justices,"  etc.  Justice  Wayne  died  in  July, 
1867,  and  Justice  Grier  resigned  in  February,  1869. 
Grant  was  inaugurated  President  March  4,  1869,  ^^^^1 
in  April  of  the  same  year  Congress  raised  the  number 
of  Associate  Justices  to  eight,  one  less  than  under 
the  statute  of  1863,  ^^'^'^  Bradley  and  Strong  were  ap- 
pointed to  the  vacancies.  These  appear  to  be  the 
only  instances  in  which  Congress  has  interfered  with 
the  Federal  Courts. 


AMERICAN  CONSTITUTIONS.  65 

The  President,  however,  has  a  direct  intluence  on 
the  Bench  in  his  power  of  appointment  to  vacancies, 
which  he  always  fills  with  men  in  sympathy  with  his 
own  political  views.  In  this  way  the  political  com- 
plexion of  the  Court  is  constantly  changing.  But  it 
should  be  said  that  though  many  appointments  have 
been  made  of  men  active  in  politics,  as,  for  example, 
Taney  and  Chase,  no  stain  has  ever  been  cast  upon 
the  integrity  or  honesty  of  their  decisions  after  being 
placed  upon  the  Bench.  Probably  the  most  re- 
markable instance  of  a  change  in  the  tone  of  the 
Court  brought  about  by  new  appointments,  was 
regarding  the  Legal  Tender  Question.  In  1869 
the  Court  held,  five  to  three,  that  United  States 
notes  were  not  a  legal  tender  for  debts  existing 
before  the  passage  of  the  law  of  1862.  In  1871  the 
Court  reversed  this  decision,  by  five  to  four,  having 
in  the  meantime  received  two  new  Judges. 

The  limits  of  this  paper  forbid  any  more  extended 
examination  of  the  relations  of  the  Judiciary  in  the 
State  Governments  to  the  other  departments.  It 
has  already  been  shown  that  in  nearly  every  Slate 
the  Supreme  Court  has  been  placed  by  the  Constitu- 
tion on  an  independent  footing,  and  apparently  there 
is  little  disposition  at  the  present  time:  to  interfere 
with  the  inferior  Courts  for  selfish  or  political  ends. 

Great   Power  of  American  Courts. 

We  have  seen  in  the  course  of  this  sketch  the 
most  radical  chang(;s  in  tht;  relations  of  the  three 
co-ordinate  powers  of  Government.       I'he  I'lxeculive, 


66  AMERICAN  CONSTITUTIONS. 

all  powerful  at  the  beginning,  was  reduced  to  a  mere 
shadow  of  its  former  glory,  and  in  these  later  days  is 
regaining  some  of  its  lost  power.  The  Legislature, 
at  first  weak,  afterwards  absorbed  the  powers  of  the 
other  departments,  but  is  now  much  reduced  again. 
Throughout  all  these  changes  the  dignity  and  power 
of  the  Judges  have  steadily  increased.  Their  inde- 
pendence has  been  spoken  of,  and  their  claim  to 
control  even  the  conduct  of  the  Executive  in  purely 
ministerial  acts,  but  their  greatest  power,  most  amaz- 
ing to  Europeans,  is  the  authority  to  set  aside  a 
statute  which  they  hold  to  be  in  conflict  with  the 
written  Constitution.  No  other  Courts  in  the  world 
possess  this  unique  power.  The  Supreme  Courts 
of  the  States  may  pronounce  upon  the  constitution- 
ality of  the  statutes  of  the  State  Legislature,  while 
the  Supreme  Court  of  the  United  States  may  sit  in 
judgment  upon  the  laws  of  Congress,  the  official  acts 
of  the  President  to  a  certain  extent,  upon  the  statutes 
of  the  States,  nay,  even  upon  the  State  Constitutions 
themselves.  ' '  The  Supreme  Court, "  said  De  Tocque- 
ville,  "is  placed  higher  than  any  known  tribunal, 
both  by  the  nature  of  its  rights  and  the  class  of  justi- 
ciable parties  which  it  controls." 

This  increase  of  the  judicial  power  in  America 
results  first  from  the  steady  growth  of  the  idea  that 
the  Constitution,  the  fundamental  law  of  the  State, 
should  be  an  instrument  emanating  directly  from  the 
people,  and  controlling  the  acts  of  the  Government 
instituted  under  it ;  next,  as  the  natural  corollary  of 
this,  it  was  recognized  that  the  power  must  lie  some- 
where  to  compare   the    acts  of   the   Executive  and 


AMERICAN   CONSTITUTIONS.  67 

Legislature  with  the  Constitution,  and  it  could  only- 
lie  properly  in  the  Courts. 

We  are  so  accustomed  to-day  to  the  machinery  of 
a  Constitutional  Convention,  chosen  solely  to  frame  a 
government,  and  when  it  has  completed  its  work, 
submitting  the  instrument  to  ratification  by  popular 
vote,  that  we  forget  there  was  a  time  when  these 
forms  were  new,  a  time  when  the  Legislatures  claimed 
these  powers,  and  made  and  unmade  Constitutions. 
Our  Revolutionary  fathers  were  colonial  English- 
men before  they  were  Americans,  and  they  inherited 
the  love  for  English  institutions  and  that  reverence 
for  Parliament,  which  clothes  it  with  ab  solute  power. 
So  in  the  early  days  of  the  Revolution,  we  find 
our  Legislatures  claiming  the  same  wide  stretch  of 
authority  that  belonged  to  the  British  Parliament. 
When  the  Colonies  in  1775  and  1776,  threw  off  the 
yoke  of  Great  Britain,  it  was  in  every  case  an  act 
of  the  Legislature,  and  in  no  instance  were  the  peo- 
ple consulted  directly.  The  new  forms  of  govern- 
ment then  adopted,  were  not  submitted  to  direct  rati- 
fication by  popular  vote,  except  in  New  Hampshire 
and  Massachusetts.  In  Rhode  Island  and  Connec- 
ticut, the  Legislatures  simply  declared  their  inde- 
pendence, and  re-affirmed  the  forms  of  government 
already  existing  under  their  charters.  In  South  Car- 
olina, a  Constitution  was  framed  and  adopted  by  the 
Legislature;  while  two  years  later,  in  1778,  the  same 
])ody  \)y  a  m(jre  statute  repealed  this  fundamental 
instrument  and  adojjted  a  new  one.  In  Virginia  a 
Convention  composed  of  45  members  of  thi:  1  louse  of 
Burgesses  framed  and  adopted  a  Constitution  which 


68 


AMERICAN  CONSTITUTIONS. 


Stood  till  1830.  In  Delaware,  Georgia,  Maryland, 
New  Hampshire,  New  Jersey,  New  York,  North 
Carolina  and  Pennsylvania,  Conventions  elected  for 
the  purpose,  framed  and  adopted  Constitutions.  In 
Massachusetts  alone,  the  work  of  the  Convention 
was  submitted  to  the  people  for  ratification,  which 
took  place  in  1780.  In  Delaware,  Georgia,  New 
Hampshire  and  Pennsylvania,  new  Constitutions  to 
supersede  the  temporary  instruments  first  adopted, 
were  framed  by  Conventions  within  a  few  years,  but 
only  in  New  Hampshire  was  it  thought  necessary  to 
ratify  the  work  of  the  Convention  by  popular  vote. 
The  object  of  entering  thus  into  detail  on  this 
point  was  to  show  the  growth  of  the  idea  that  the 
Constitution  is  the  direct  legislative  act  of  the  people, 
and  as  such  it  must  of  course  control  any  acts  of  their 
agents,  the  Legislature;  for  on  this  point  rests  the 
tremendous  power  exercised  by  the  American  Judi- 
ciary to  declare  laws  unconstitutional.  Of  course  the 
authority  to  compare  this  fundamental  instrument 
with  the  statutes  enacted  by  the  Legislature  meeting 
under  it,  can  only  lie  in  the  Judicial  Department. 

Resistance  to  the  Claims  of  the  Courts. 

This  novel  claim  of  power  was  not  surrendered  to 
the  Courts  without  a  struggle.  In  i  786,  the  Supreme 
Court  of  Rhode  Island  pronounced  an  act  passed 
by  the  Legislature  to  be  in  conflict  with  the  Colonial 
Charter  which  had  then  become  the  Constitution  of 
the  State.  This  case  is  peculiarly  interesting  as 
being  the  first  instance  in   which  a  legislative  enact- 


AMERICAN  CONSTITUTIONS.  69 

ment  was  declared  void  on  the  ground  of  incompati- 
bility with  a  State  Constitution.  The  next  Legisla- 
ture refused  to  re-elect  these  Judges  when  their 
terms  expired  at  the  end  of  the  year,  and  filled  their 
places  with  men  more  in  harmony  with  the  Legisla- 
ture. 

In  1820  Webster  made  an  appeal  to  the  Massa- 
chusetts Constitutional  Convention  in  behalf  of  an 
independent  Judiciary,  and  in  opposition  to  a  pro- 
posed amendment  whereby  the  Governor  might  re- 
move Judges  on  an  address  from  a  bare  majority  of 
the  Legislature.  During  his  argument,  he  said  that 
if  the  records  of  neighboring  States  were  examined, 
"  it  might  be  found  that  cases  had  happened  in  which 
laws  known  to  be  at  best  very  questionable  as  to 
their  consistency  with  the  Constitution,  had  been 
passed,  and  at  the  same  session,  effectual  measures 
taken  under  the  power  of  removal  by  address,  to 
create  a  new  Bench."  We  have  no  means  of  know- 
ing to  what  State  he  referred,  as  he  cited  no  instances ; 
but  the  practice  had  evidently  been  common  enough 
to  excite  his  alarm,  and  that  the  Legislatures  should 
have  recourse  to  this  indirect  method  of  impeachmcnil 
in  order  to  maintain  their  authority,  and  even  antici- 
pate an  adverse  decision  by  removal  of  the  obnox- 
ious Judges,  shows  how  reluctant  they  were  to  submit 
to  restraint, 

But  the  most  remarkable  struggle  took  place  in 
Ohio  in  1807,  where  a  Circuit  Judge  declared  a  law 
unconstitutional,  and  on  appeal  his  decision  was  sus- 
tained by  a  majority  of  the  Supreme  Court  of  the 
State.      Upon    this   the   Circuit    Judge  and    iln:   two 


70  AMERICAN  CONSTITUTIONS. 

members  of  the  Supreme  Court  sustaining  his  de- 
cision were  impeached  by  the  lower  house  of  the 
Legislature,  and  actually  brought  to  trial  for  daring 
to  declare  a  statute  unconstitutional.  They  were  not 
however  convicted.  The  right  to  pronounce  a  law 
void  from  incompatibility  with  the  Constitution  was 
asserted  by  the  Supreme  Court  of  the  United  States 
for  the  first  time  in  the  great  case  of  Marbury  v. 
Madison  in  1802.  The  same  ground  had  been 
previously  taken  by  the  Federal  Circuit  Courts  as 
early  as  1797,  and  by  the  Supreme  Courts  of  some 
of  the  States. 

In  the  heat  of  great  political  excitement,  the  ques- 
tion has  been  sometimes  raised,  how  far  the  decision 
of  the  Supreme  Court  of  the  United  States  on  the 
constitutionality  of  a  measure  is  binding  as  a  prece- 
dent upon  Congress  and  the  President.  Jefferson, 
who  was  jealous  of  the  claims  of  the  Court,  says  in 
his  correspondence:  "My  construction  is  that  each 
department  of  the  government  is  truly  independent 
of  the  others,  and  has  an  equal  right  to  decide  for 
itself  what  is  the  meaning  of  the  Constitution  in  the 
laws  submitted  to  its  action,  and  especially  when  it  is 
to  act  ultimately  and  without  appeal."  He  then  pro- 
ceeds to  give  examples  in  which  he  disregarded,  when 
President,  the  decisions  of  the  Judiciary,  and  refers 
to  the  Alien  and  Sedition  Laws,  and  the  case  of 
Marbury  v.  Madison.  Jackson  made  the  same  claim 
in  his  famous  Veto  Message,  in  even  stronger  lan- 
guage, which  has  already  been  quoted.  Lincoln  al- 
luded to  it  in  his  first  inaugural,  referring  to  the  Dred 
Scott  case,  which  affirmed   the  right  of   the   slave- 


AMERICAN   CONSTITUTIONS.  7 1 

holder  to  hold  his  slaves  in  the  Territories;  and 
during  Johnson's  impeachment  trial  his  counsel,  es- 
pecially Mr.  Evarts  and  Mr.  Stanbery,  re-asserted 
the  doctrine  in  its  full  force.  Jackson's  position  was 
opposed  with  great  earnestness  by  Madison  in  his 
correspondence,  and  by  Webster  in  his  famous  speech 
upon  the  Veto  of  the  Bank  Bill.  It  may  safely  be 
said  that  to-day  the  doctrine  is  abandoned,  and  is 
never  likely  to  appear  again,  unless  in  the  furnace  of 
extreme  political  heat,  when  the  passions  of  men 
warp  and  twist  everything  to  their  purposes. 

The  scope  of  this  power  to  declare  a  law  unconsti- 
tutional is  much  broadened  by  the  modern  tendency 
to  limit  legislation,  which  has  already  been  spoken  of. 
The  early  Constitutions  were  very  brief,  containing 
usually  little  more  than  a  bill  of  rights  and  a  skele- 
ton of  the  government,  leaving  all  details  to  the  dis- 
cretion of  the  Legislature.  Now  all  this  is  changed, 
the  bounds  of  the  different  departments  are  carefully 
defined,  and  the  power  of  the  Legislature  is  jealously 
curbed,  particularly  in  the  domain  of  special  legisla- 
tion. It  will  be  seen  at  a  glance,  that  this  enlarges 
the  relative  power  of  the  Courts.  It  limits  the  Legis- 
lature, and  widens  the  field  of  the  Judiciary  at  one 
stroke. 

What,  then,  is  the  sum  of  our  examination  regard- 
ing the  Judiciary  ?  History  teaches  us  it  has  grown 
steadily  in  importance  during  the  entire  century. 
This  change  is  both  safe  a;id  wise;  because  the 
Courts  are  the  weakest  of  the  three  departments ;  they 
hold  neither  the  purse  nor  the  sword ;  they  have  no 
patronage  to  dispense;  tht.-ir  [)()wer  is  passive  rather 


72  AMERICAN  CONSTITUTIONS. 

than  active,  and  in  case  of  resistance  to  their  decrees, 
they  must  depend  on  the  other  departments  to  give 
them  vitaHty.  If  at  any  time  they  show  an  incHna- 
tion  to  abuse  their  power,  the  right  of  impeachment 
still  remains,  and  behind  that  the  right  of  removal 
in  most  of  the  States.  There  can  be  little  danger 
then  from  this  increase  in  the  authority  of  the  Judges; 
it  has  strengthened  the  weak  and  not  the  strong, 
and  made  a  juster  and  more  even  balance  of  power 
between  the  three  branches  of  government. 

Conclusion. 

We  have  passed  in  review  the  drift  of  popular 
opinion  on  these  subjects,  as  crystallized  into  in- 
stitutions, during  a  period  reaching  back  into 
colonial  times.  In  the  State  governments  we 
have  seen  the  Governor,  once  the  august  symbol 
of  royalty,  shorn  of  his  strength  and  reduced  to 
a  mere  shadow  of  power;  then  later  still,  by  a 
re-action,  endowed  again  with  much  of  his  orig- 
inal authority.  We  have  seen  the  Legislature,  at 
first  weak  and  limited,  spring,  at  one  bound,  under 
the  stimulus  of  a  revolt  against  royal  oppression, 
almost  into  the  omnipotence  of  a  British  Parliament; 
then  afterwards,  gradually  stripped  of  its  greatness, 
cramped  and  fettered  in  its  movements  by  a  revulsion 
of  popular  sentiment,  which  singularly  enough  shows 
a  greater  distrust  of  the,  legislators,  the  popular  body, 
than  of  either  Governor  or  Judges.  And  last  of  all, 
the  authority  of  the  Judiciary,  both  Federal  and 
State,  has  constantly  increased  throughout  the  cen- 


A^rEIiICAN  COXSTITUTIOXS.  73 

tury.  We.  as  Amer.icans,  do  not  feci  its  influence, 
for  we  are  used  to  it  from  childhood,  but  the  foreifjner 
who  comes  fresh  to  the  study  of  our  institutions,  is 
amazed  at  its  extent,  and  at  the  reverence  with  which 
our  people  submit  to  the  decrees  of  the  Courts,  even 
the  sovereign  States  bowing  their  heads  in  submis- 
sion. The  century  has  wrought  marvellous  changes 
in  our  country,  in  its  breadth,  in  its  nearness  to  the 
old  world,  in  the  character  of  its  people,  in  the  power 
of  the  Federal  Government,  and  in  its  relation  to  the 
States;  but  with  all  these  changes,  the  type  of  pop- 
ular government  has  drawn  nearer  and  nearer  to  the 
ideal  of  a  perfect  balance  of  co-ordinate  powers. 
Looking  back  over  the  whole  field,  the  points 
*  that  have  surprised  and  impressed  me  are  the  distrust 
and  consequent  depression  of  the  legislative  power 
in  the  States,  and  the  steady  elevation  of  the  Judi- 
ciary, in  both  State  and  Federal  Governments.  The 
first  surprised  me.  for  I  had  been  told  so  often  the 
voice  of  the  people  was  the  voice  of  God  that  such 
a  distrust  seemed  at  first  almost  like  a  confession  of 
failure  of. popular  government;  but  may  we  not  more 
justly  say  it  is  a  mark  of  wisdom  in  the  people,  that 
knowing  their  own  passions  and  frailties,  they  guard 
against  them  by  putting  bits  in  the  mouths  of  their 
own  representatives  ?  On  the  other  hand,  while  doing 
this,  they  have  enlarged  the  field  of  the  Judges,  who 
represent  the  deeper  and  more  abiding  popular  sense 
of  order  and  justice;  that  str(;am  of  feeling  which 
flows  with  steady  volume,  deep  and  strong.  hanlK- 
moved  by  those  tempests  of  pojnilar  fiir\  which  lash 
the  surface  for  a   time,  and    then  as  rapidi)  subside. 


74  AMERICAN  CONSTITUTIONS. 

The  Court  is  the  instrument  of  the  people  no  less 
than  the  Legislature;  but  it  represents  the  popular 
sentiment  in  a  deeper,  calmer,  more  lasting  form 
and  embodies  their  aspirations  after  an  ideal  of  perfect 
order;  the  law  expresses  the  conscience  of  the  people. 

The  Courts  the  Conscience  of  the  People. 

Why,  then,  should  the  Judiciary  so  often  be  excepted 
when  we  speak  of  popular  institutions?  It  is  some- 
times spoken  of  as  though  it  were  almost  antagonistic 
to  the  people.  Possibly  this  arises  from  the  fact  that 
the  law  is  the  field  occupied  exclusively  by  a  separate 
guild  of  men,  whom  De  Tocqueville  terms  the  only 
real  aristocracy  in  America.  Possibly  it  is  because 
the  function  of  the  Court  is  so  often  to  bring  back  the 
people  from  a  state  of  excitement  and  fury  to  a  calm 
sense  of  right.  But  whatever  may  be  the  causes  of 
this  sentiment,  it  has  no  ground  in  fact.  The  Judi- 
ciary is  as  really  a  part  of  the  people's  government 
as  any  department.  The  interpretation  of  the  law 
represents  the  popular  sentiment  of  order  and  justice 
as  fully  as  the  written  statute.  The  Court  can  go 
no  farther  towards  absolute  right  than  it  is  sustained 
by  popular  opinion,  and  its  decisions  must  represent 
the  average  public  sentiment ;  not  in  the  froth  and  fury 
of  a  political  campaign,  but  the  calm,  settled  conviction 
of  thinking  men.  If  the  popular  conscience  is  quick- 
ened, the  judicial  interpretation,  as  well  as  the  statutes, 
must  reflect  its  increased  sensitiveness,  and  it,  too, 
,  becomes  more  liberal  and  humane.  So  that  to  clothe 
the   Courts  with  these   unusual  powers  indicates  no 


AMERICAN  CONSTITUTIOXS.  75 

distrust  of  democratic  institutions,  but  rather  an  ap- 
peal from  the  passions  to  the  better  judgment,  to  the 
calm  conscience  of  the  people. 

This  exaltation  of  the  Judiciary  in  our  scheme  of 
government  should  excite  our  patriotic  pride,  for  it  is 
a  positive  advance  in  the  art  of  government.  We 
may  justly  lay  a  bolder  claim,  and  say  it  marks 
a  higher  civilization,  a  reverence  for  law  itself  as 
above  the  men  who  make  the  statute  or  those  who 
are  the  instruments  of  its  execution.  In  the  simpler 
and  ruder  forms  of  government,  the  Executive  ab- 
sorbs the  other  powers.  The  despotic  autocrat  makes 
the  laws,  interprets,  and  executes  them.  As  the 
world  advances  and  the  nations  become  more  en- 
lightened, the  people  claim  a  share  in  the  public  af- 
fairs; this  idea  culminates  in  the  supremacy  of  the 
Parliament,  where  both  Executive  and  Judiciary  may 
be  made  and  unmade  at  the  will  of  the  popular  body. 
Our  own  country,  in  its  brief  history,  has  passed 
through  both  these  stages.  The  colonial  period  was 
marked  by  the  overshadowing  power  of  the  Execu- 
tive; while  at  a  later  stage,  in  the  heat  of  the  Revo- 
lution, the  temper  of  our  people  would  bear  nothing 
short  of  the  al)solute  supremacy  of  the  Legislature- 
But  the  ripened  fruit  of  our  experience  is  this  niodern 
idea  of  government,  which  lifts  up  the  Judiciary  to  an 
exalted  and  independent  position,  and  places  law.  im- 
personal, impassive,  and  serene,  in  the  iniicnnosl 
shrine  of  the  temple,  jealously  guarded  from  prolanc 
intrusion. 

What  confidence  this  inspires  in  the  wisdom  and 
integrity  of  human  nature,  in  the  power  of  the:  pcopK- 


76  AJifEBICAN  CONSTITUTIONS. 

for  self-government,  A  century  of  experience,  check- 
ered by  foreign  and  domestic  wars,  with  marvellous 
growth  of  power  and  wealth,  ends  in  a  more  perfect 
realization  of  the  type  of  popular  government.  A 
century  of  various  trials  leads  to  the  elevation  of  the 
Judiciary,  the  conscience  of  the  people,  for  the  first 
time  in  the  history  of  the  world,  to  its  true  place  as 
an  independent,  co-ordinate  department  of  the  gov- 
ernment. 

We  have  not  fully  realized  our  ideal.  Our  forms 
are  in  many  respects  crude ;  our  practice  under  them 
is  blurred  by  the  imperfections  belonging  to  human 
nature;  but  the  grand  plan  has  been  outlined,  and 
we  are  struggling  to  its  attainment.  Incomplete  as 
it  is,  it  stands  in  unique  majesty,  as  the  outline  of 
perfect  human  government,  culminating  neither  in 
the  selfish  will  of  the  autocrat,  nor  in  the  turbulent 
ambition  of  a  popular  body, — but  where  the  calm 
majesty  of  law  crowns  the  great  work. 


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